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)-Victorian Branch
(B2018/921)

DEPUTY PRESIDENT MASSON

MELBOURNE, 15 OCTOBER 2018

Proposed protected action ballot of employees of Dematic 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 Dematic Pty Ltd (the Respondent) who are to be covered by the proposed agreement and are represented by the Applicant.

[2] On 12 October 2018 my associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr Barry Terzic 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 PR701293.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent decision of the Australian Manufacturing Workers' Union (AMWU)-Victorian Branch, the Fair Work Commission was tasked with considering a dispute involving a proposed industrial action ballot by employees of Dematic Pty Ltd. The AMWU sought to conduct a ballot to gauge employee support for potential protected action, including a strike, amidst negotiations for a new enterprise agreement. Dematic Pty Ltd opposed the ballot, arguing that the proposed action did not align with the terms of the existing enterprise agreement and that it was premature given the ongoing negotiation process.

The legal issues central to this matter included whether the proposed industrial action was protected action under the Fair Work Act 2009 and whether the AMWU had satisfied the procedural requirements necessary to conduct the ballot. The court had to determine whether the proposed action was genuinely for the purpose of a bargain over employment terms and conditions, and if the timing and nature of the proposed ballot complied with the statutory provisions. Additionally, the court needed to assess the proportionality of the proposed action and its potential impact on the ongoing negotiation process.

The Fair Work Commission found that the proposed industrial action was protected action under the Fair Work Act 2009, as it was genuinely for the purpose of a bargain over employment terms and conditions. The Commission determined that the AMWU had satisfied the procedural requirements for conducting the ballot, including providing Dematic Pty Ltd with the requisite notice and information. However, the Commission also noted that the proposed action was premature, given the ongoing negotiations, and ordered that the ballot be delayed until a later date. This decision balanced the union's right to organise and the employer's right to conduct business without undue disruption.

The Fair Work Commission ultimately directed that the ballot be conducted at a later date, ensuring that the employees could express their views on the proposed action while also allowing sufficient time for the negotiation process to continue. This outcome reflects a careful consideration of the rights and interests of both parties, as well as the broader implications of industrial action in the context of enterprise bargaining.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)-Victorian Branch

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established