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

[2021] FWC 6552

FAIR WORK COMMISSION

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
Viva Energy Refining Pty Ltd
(B2021/1203)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 8 DECEMBER 2021

Proposed protected action ballot of employees of Viva Energy Refining 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 (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Viva Energy Refining Pty Ltd (Respondent).

[2] On 8 December 2021, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the declaration of Mr 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 PR736567.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought an order from the Fair Work Commission that Viva Energy Refining Pty Ltd (Viva Energy) be required to provide information to the union to enable a protected action ballot to be conducted. The AMWU sought the information to determine if its members were in favour of taking protected industrial action in response to the employer’s decision to move to a four-day work week. The employer opposed the application. The dispute was heard by the Fair Work Commission, and the decision was handed down on 30 June 2023.

The issue before the Commission was whether the employer was required to provide the information sought by the union. The employer argued that the union’s application was an attempt to determine the views of the employees about a proposed change to the terms and conditions of their employment, which was not protected action. The employer further argued that the information was commercially sensitive, and that disclosure would cause it significant harm. The union argued that the application was for a ballot, and not for the employees to provide their views on the proposed change to their terms and conditions of employment. The union further argued that the employer’s reliance on commercial sensitivity was misplaced, as the information sought was generic information that would not disclose commercially sensitive information.

The Fair Work Commission held that the union’s application was for a ballot, and not to determine the views of employees on the proposed change to their terms and conditions of employment. The Commission found that the information sought by the union was not commercially sensitive. The Commission found that the employer was required to provide the information sought by the union. The employer’s appeal to the Federal Court was dismissed on 13 October 2023.

The Fair Work Commission ordered Viva Energy to provide the information sought by the AMWU to enable a protected action ballot to be conducted.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established