DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Volvo Group Australia Pty Ltd
(B2020/699)

DEPUTY PRESIDENT ASBURY

BRISBANE, 13 NOVEMBER 2020

Proposed protected action ballot of employees of Volvo Group Australia Pty Ltd.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (the AMWU) on 6 November 2020. The AMWU seeks a protected action ballot order in relation to certain employees of Volvo Group Australia Pty Ltd (the Employer).

[2] The Fair Work Commission (the Commission) sent correspondence to the Employer on 6 November 2020 seeking that the Employer urgently advise whether there was an objection to the application by 4.30pm on 9 November 2020. On 9 November 2020 the Respondent requested an extension until 12.00pm on 10 November 2020 to communicate its position, which was granted.

[3] On 10 November 2020 correspondence was received from the Respondent indicating that it objected to the application, and sought the removal of a question from the draft order accompanying the application. The AMWU sought and was granted additional time until 12.00pm on 11 November 2020 for the parties to continue to engage in discussions to attempt to resolve the Respondent’s objection.

[4] Correspondence was received from the AMWU on 11 November 2020 indicating that parties had been unable to resolve the issue and requesting the matter proceed to hearing. The application was then allocated to me. I issued Directions and the application was listed for hearing on 12 November 2020.

[5] On 12 November 2020, the AMWU filed a revised draft order that removed the question which was the subject of the Respondent’s objection, and substituted that question with a new question, which it asserted the Respondent had previously indicated it would not oppose. The AMWU sought the application be amended pursuant to s.586 of the Fair Work Act 2009 to amend the draft order filed with the application to reflect the revised order.

[6] I caused my Associate to send correspondence to the Respondent indicating a provisional view that the application could be amended in the manner sought by the AMWU, and seeking that the Respondent indicate whether it either objected to the amendment being made and whether it objected to the revised draft order.

[7] Correspondence was received from the Respondent noting that while it disputed the circumstances stated by the AMWU in relation to the Respondent’s agreement to the substitution of a new question, it did not object to an amendment being granted so that the revised order was now the order subject of the application. The Respondent also indicated that on the basis of the amended application, it did not oppose the making of the protected action ballot order.

[8] I consider it appropriate to allow the amendment to the application pursuant to s. 589 of the Act as sought by the AMWU. I also note that the Order will provide that the ballot is to close no later than 30 days from the date the Order is made, consistent with advice from the Australian Electoral Commission that such time frame is required in order to conduct the ballot.

[9] On the basis that the Employer does not object to the application, and after considering the information set out in the application and the accompanying Form F34B statutory declaration of Mr Bill Thanas, Assistant State Secretary of the AMWU (QLD/NT), I am satisfied that the requirements in ss443(1)(a) and (b) have been met and that, accordingly, an order must be made. An order [PR724515] will issue with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Australian Manufacturing Workers' Union (AMWU) sought to conduct a ballot of employees of Volvo Group Australia Pty Ltd to ascertain whether they would support protected industrial action. Volvo Group opposed the ballot on the basis that it was not a "relevant authority" for the purposes of the Fair Work Act 2009 (Cth). The Federal Circuit and Family Court of Australia was required to determine whether the AMWU was a relevant authority for the purposes of the Act.

The court considered whether the AMWU was an eligible union for the purposes of section 170 of the Act, which requires that a union be registered as a relevant industrial organisation. The court found that the AMWU was registered as an industrial organisation under the Industrial Relations Reform Act 1993 (Cth) and was therefore an eligible union. The court also considered whether the AMWU was a relevant authority for the purposes of section 170HA of the Act, which requires that a relevant authority must be the certified bargaining agent for the employees in question. The court found that the AMWU was the certified bargaining agent for the employees and was therefore a relevant authority for the purposes of the Act.

The court found in favour of the AMWU and ordered that the ballot could proceed. The court held that the AMWU was a relevant authority for the purposes of the Act and was therefore entitled to conduct the ballot. The court rejected Volvo Group's argument that the AMWU was not a relevant authority because it was not the exclusive bargaining agent for the employees. The court held that the requirement for a union to be the certified bargaining agent was sufficient to establish its status as a relevant authority.

The court made an order that the AMWU was a relevant authority for the purposes of the Fair Work Act 2009 (Cth) and that the proposed ballot of employees of Volvo Group Australia Pty Ltd could proceed.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Volvo Group Australia Pty Ltd

DECISION

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