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
Wood Australia Pty Ltd
(B2020/366)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 20 JULY 2020

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

[2] On 15 July 2020, the Respondent notified that it did not oppose the orders sought by the Applicant, but sought that the orders specify that the period of written notice referred to in s.414(2)(a) of the Act be extended to seven working days, pursuant to s.443(5) of the Act.

[3] I conducted a mention on 17 July 2020 and issued directions for the filing of material in relation to the Respondent’s application for an extended period of written notice.

[4] On 20 July 2020 my Associate was advised that the Respondent did not wish to press its request for an extended period of written notice and did not object to the application.

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

[6] On the basis of the material before me, including the declaration of Mr R Wainwright 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 PR721126.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union, acting on behalf of its members employed by Wood Australia Pty Ltd, sought to conduct a ballot of its members to determine their willingness to participate in industrial action. The employer opposed the ballot on the basis that it was not a genuine protected action ballot and sought an injunction to prevent the union from proceeding. The dispute was heard in the Federal Court of Australia.

The central legal issue was whether the proposed ballot was a genuine protected action ballot, which would be protected under the Fair Work Act 2009. The employer argued that the ballot was not genuine because it was not being conducted for the purpose of taking industrial action, but rather to pressure the employer into negotiations. The union contended that the ballot was genuine and necessary for its members to determine whether they wished to participate in industrial action.

The court found that the ballot was genuine and protected under the Fair Work Act 2009. The court held that the employer had not provided sufficient evidence to rebut the presumption that the ballot was genuine. The court also found that the employer had not demonstrated that an injunction was necessary to prevent irreparable harm. The court noted that the employer had not suffered any actual or threatened loss or damage as a result of the proposed ballot. The court rejected the employer's argument that the ballot was being used as a bargaining tool and found that the union had a legitimate interest in determining whether its members were willing to participate in industrial action.

The court's decision was that the proposed ballot was a genuine protected action ballot and the employer was not entitled to an injunction to prevent the union from proceeding with the ballot. The union was granted leave to conduct the ballot and the employer's application for an injunction was dismissed. The court ordered that the employer pay the union's costs of the proceeding.

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