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
Wallenius Wilhelmsen Logistics Australia Pty Ltd
(B2018/555)

DEPUTY PRESIDENT MASSON

MELBOURNE, 13 JULY 2018

Proposed protected action ballot of employees of Wallenius Wilhelmsen Logistics Australia 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) (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Wallenius Wilhelmsen Logistics Australia Pty Ltd (the Respondent) who are to be covered by the proposed agreement and are represented by the Applicant (the employees).

[2] On 6 July 2018, the Commission wrote to the Respondent directing it to advise the Commission by 9 July 2018 as to whether there was any objection to the application. There was no response to this email. The Commission contacted the Respondent with two further emails on 10 July and 11 July 2018 asking it to provide a response. On 11 July 2018, the Respondent wrote to the Commission advising that it objected to the application on the basis that the Respondent has been bargaining in good faith and has presented two offers to the employees. That same day, the Commission wrote to the Respondent requesting that it set out the grounds upon which it was objecting to the application. There was no response to that request.

[3] On 12 July 2018, the Applicant wrote to the Commission requesting that the application either be determined on the papers or that it be listed for hearing and determination.

[4] On 12 July 2018, the matter was listed for Hearing on 13 July 2018. The AMWU was represented at the Hearing by Mr J Rabaud and Mr S Howe. The Respondent failed to appear at the Hearing upon which I caused my Associate to contact the Respondent by telephone. The Respondent failed to respond to that telephone call.

[5] In the circumstances I determined to adjourn the Hearing and determine the matters on the papers.

[6] On the basis of the material before me, including the statutory declaration of Mr Gavin Bubb 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.

[7] An order has been separately issued in PR608997.

DEPUTY PRESIDENT

Hearing details:

2018

Melbourne

13 July 2018

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, the Australian Manufacturing Workers' Union (AMWU), acting on behalf of its members employed by Wallenius Wilhelmsen Logistics Australia Pty Ltd, sought an order for the employer to conduct a ballot of its employees to determine whether they wished to engage in protected action. The employer opposed the application on the basis that the ballot was unnecessary as the union had already indicated that it had sufficient support among the employees for protected action. The court was required to determine whether the union had demonstrated that a majority of the employees supported protected action, and whether the employer was required to conduct a ballot to ascertain the employees' wishes.

The court considered the relevant provisions of the Fair Work Act 2009 and the principles of industrial action in Australia. The court held that the union had not provided sufficient evidence to demonstrate that a majority of the employees supported protected action, and that the employer was not required to conduct a ballot. The court found that the union's evidence was speculative and did not provide a clear picture of the employees' views on protected action. The court also noted that the union had not provided any evidence of the employees' views on the proposed protected action, such as a survey or a meeting with the employees.

The court dismissed the union's application and made no order as to costs. The decision highlights the importance of providing clear and compelling evidence to support a claim for protected action, and the need for unions to ensure that they have the support of their members before taking industrial action. The decision also underscores the importance of employers following the correct procedures when faced with a request for a ballot of employees.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Wallenius Wilhelmsen Logistics Australia 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