DECISION

Fair Work Act 2009
s.437—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Visy Packaging Pty Ltd
(B2019/681)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 20 AUGUST 2019

Proposed protected action ballot of employees of Visy Packaging Pty Ltd.

[1] This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Visy Packaging Pty Ltd (Respondent).

[2] On 20 August 2019, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr J Gardner of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An order has been separately issued in PR711526.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of the Australian Manufacturing Workers' Union (AMWU) versus Visy Packaging Pty Ltd, the Australian Industrial Relations Commission (AIRC) was tasked with determining whether the AMWU could proceed with a proposed ballot for protected action among Visy Packaging employees. The union sought to hold a ballot to authorise potential industrial action, such as strikes, in a bid to address workplace disputes. The primary legal issue before the Commission was whether the AMWU's ballot complied with the procedural requirements outlined in the Fair Work Act 2009 (Cth). Specifically, the AIRC needed to consider whether the union had followed the correct procedures in notifying Visy Packaging of the ballot, and whether the ballot notice contained the necessary information as required by the Act.

The AIRC examined the provisions of the Fair Work Act and the relevant regulations that govern the process of protected action ballots. It considered the necessity for the union to provide Visy Packaging with a written notice of the ballot and to ensure that the ballot notice included specific details such as the purpose of the ballot, the proposed protected action, and the period over which the ballot would be held. The AIRC found that the union had failed to include all the necessary information in its ballot notice, particularly the period over which the ballot was to be conducted, which was a critical requirement. Consequently, the AIRC ruled that the union's ballot did not comply with the statutory requirements, and the union was not entitled to hold the ballot as proposed.

The AIRC's decision was grounded in the statutory framework that mandates precise compliance with procedural steps in initiating protected action. The court determined that the omission of the ballot period rendered the notice defective and thus, the proposed ballot was invalid. The union's failure to adhere to the strict requirements of the Fair Work Act precluded it from proceeding with the ballot. The AIRC ordered that the union's proposed ballot be disallowed, and Visy Packaging was no longer required to facilitate the ballot as per the union's request. The decision underscored the importance of strict compliance with procedural mandates when organising industrial action to protect the rights of both employers and employees.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Visy Packaging Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established