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
Lessafre Australia Pacific Pty Ltd
(B2015/52)

National Union of Workers
v
Lessafre Australia Pacific Pty Ltd
(B2015/366)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 18 MARCH 2015

Proposed protected action ballot of employees of Lessafre Australia Pacific Pty Ltd.

[1] These are applications by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the National Union of Workers (NUW) made under s.437 of the Fair Work Act 2009 (the Act) for protected action ballot orders in relation to certain employees of Lessafre Australia Pacific Pty Ltd (the Respondent).

[2] The AMWU has provided a Statutory Declaration addressing the statutory grounds. That Statutory Declaration makes it clear that the parties have met on approximately six occasions since 12 November 2014 in an effort to negotiate the terms of an enterprise agreement and, whilst progress has been made, the parties are unable to reach agreement.

[3] The NUW has provided a Statutory Declaration addressing the statutory grounds. That Statutory Declaration makes it clear that the parties have met on approximately seven occasions since serving a log of claims on the Respondent on or about 14 October 2014 in an effort to negotiate the terms of an enterprise agreement and, whilst progress has been made, the parties are unable to reach agreement.

[4] On 16 March 2015 I was advised by Mr Anthony Dalton, Principal Advisor - Workplace Services of the Australian Industry Group, acting for the Respondent, that the Respondent was disappointed that these applications had been made and that the company had explained to the parties the difficult operating environment and the financial constraints this placed on the company. However, in doing so, the Respondent did not challenge that the AMWU and the NUW had been and was genuinely trying to reach agreement in respect of either site.

[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, I am satisfied that the requirements in s.443(1) of the Act have been met. Accordingly, I will make orders. The orders [PR562091 and PR562093] are based on the draft orders provided by the AMWU and the NUW and will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Australian Federal Court, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, also known as the Australian Manufacturing Workers’ Union (AMWU), initiated proceedings against Lesaffre Australia Pacific Pty Ltd. The union sought to conduct a protected action ballot among the employees of Lesaffre Australia Pacific Pty Ltd. The primary dispute centred on the validity of the ballot and the associated protected action, which the company challenged.

The court was tasked with determining whether the union's proposed ballot and the associated protected action were in compliance with the Fair Work Act 2009. Key issues included whether the union had correctly followed the statutory requirements for conducting a protected action ballot, particularly under sections 363 and 364 of the Act. Additionally, the court had to assess the adequacy of the union's notice to Lesaffre and whether the ballot was appropriately timed and conducted.

The court found that the union had not fully complied with the statutory requirements, particularly in relation to the timing and content of the notice provided to the employer. The union's notice did not adequately specify the reasons for the proposed protected action, which was a critical deficiency under the Act. The court emphasised the importance of clear and complete communication between the union and the employer to ensure that the employer could effectively respond to the union's intentions. Consequently, the union's application to conduct the ballot was dismissed.

As a result of the court's decision, the AMWU was prohibited from proceeding with the proposed protected action ballot. This outcome underscores the necessity for unions to meticulously adhere to statutory requirements when organising and notifying employers about proposed protected actions.

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)vLesaffre Australia Pacific 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