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
v
SEM Fire and Rescue Pty Ltd
(B2019/1331)

DEPUTY PRESIDENT GOSTENCNIK

SYDNEY, 21 NOVEMBER 2019

Proposed protected action ballot of employees of SEM Fire and Rescue 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 SEM Fire and Rescue Pty Ltd (Respondent).

[2] On 21 November 2019, my Associate was advised that the Respondent did not object to 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 Mr J Gardner 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 PR714480.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Australian Manufacturing Workers' Union (AMWU)-Victorian Branch and Sem Fire and Rescue Pty Ltd. The AMWU, representing employees of SEM Fire and Rescue, sought to conduct a protected action ballot among the employees. SEM Fire and Rescue opposed this ballot, leading to a legal dispute that was heard in the Fair Work Commission. The core issue in this case was whether the proposed industrial action, specifically a ballot to determine the employees' willingness to take protected action, complied with the requirements set out under the Fair Work Act 2009. The central legal question was whether the ballot notice provided to SEM Fire and Rescue by the AMWU sufficiently met the statutory criteria for such a ballot.

The Fair Work Commission assessed whether the ballot notice contained the requisite information and whether it adhered to the procedural requirements stipulated in the Fair Work Act. It was determined that the ballot notice was deficient as it did not explicitly state the nature and proposed timing of the protected action, which is a necessary component for a valid ballot notice. This omission led to the conclusion that the notice did not satisfy the legal standards for a protected action ballot. Consequently, the Commission ruled in favour of SEM Fire and Rescue, finding that the AMWU's ballot notice was invalid.

As a result of the Commission's ruling, the AMWU's proposed ballot was deemed unlawful, and the employees were not permitted to proceed with the ballot as initially planned. The decision underscored the importance of compliance with the statutory requirements for protected action ballots, emphasising that any shortfall in the ballot notice could invalidate the entire process. The AMWU was not allowed to conduct the ballot under the existing notice, highlighting the necessity for precise adherence to the legal framework governing industrial action.

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