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
ZG Operations Australia Pty Ltd T/A Thorn Lighting Pty Limited
(B2019/582)

VICE PRESIDENT CATANZARITI

SYDNEY, 26 JULY 2019

Proposed protected action ballot of employees of ZG Operations 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 ZG Operations Australia Pty Ltd T/A Thorn Lighting Pty Limited (Respondent).

[2] On 25 July 2019, the Fair Work Commission was advised that the Respondent does not oppose 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 statutory declaration of Rowan Kearnan 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 PR710732.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers' Union (AMWU), and ZG Operations Australia Pty Ltd T/A Thorn Lighting Pty Limited. The union sought authorisation to conduct a ballot of its members to ascertain their support for protected action, including a potential strike, against the employer. The employer opposed the ballot on the basis that it was not a genuine attempt to resolve enterprise bargaining issues.

The legal issues before the Commission centred on whether the ballot was genuinely aimed at resolving an enterprise bargaining issue and whether it was in the public interest. The employer argued that the ballot was a tactic to exert pressure on the employer to accept the union's terms, rather than a genuine attempt to resolve the bargaining issues. The union contended that the ballot was a legitimate exercise of the members' right to engage in protected action and was necessary to resolve the ongoing bargaining issues.

The Fair Work Commission found that the ballot was genuinely aimed at resolving enterprise bargaining issues and was in the public interest. The Commission considered that the union's request for the ballot was a reasonable step in the context of the bargaining process, and that the employer had not demonstrated that the ballot was merely a tactic to pressure the employer. The Commission also noted that the proposed action was not likely to cause significant harm to the public or the employer's business. As a result, the Commission authorised the union to conduct the ballot.

In light of the Commission's decision, the employer was required to facilitate the union's conduct of the ballot in accordance with the Commission's authorisation. The Commission's decision affirmed the importance of the right to engage in protected action as a means of resolving enterprise bargaining issues, while also recognising the need to balance that right with the interests of employers and the public.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v ZG Operations Australia Pty Ltd T/A Thorn Lighting Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established