“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union v Australasian Food Group Pty Ltd t/a Peters Ice Cream

[2014] FWC 3523

FAIR WORK COMMISSION

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
v
Australasian Food Group Pty Ltd t/a Peters Ice Cream
(B2014/99)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 27 MAY 2014

Proposed protected action ballot by employees of Australasian Food Group Pty Ltd t/a Peters Ice Cream.

[1] This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Australasian Food Group Pty Ltd t/a Peters Ice Cream (AFG).

[2] The AMWU has addressed the statutory grounds. The application makes it clear that the parties have met on approximately four occasions since the AMWU served a log of claims on AFG on 4 February 2014, and once before that date, 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] On 23 May 2014 I was advised by Mr Adam Whyte, People and Performance Manager (Operations and Supply Chain) at AFG, that AFG will not be opposing the application for a protected action ballot order. In doing so, AFG did not challenge that the AMWU had been and was genuinely trying to reach an agreement.

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

[5] 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 an order. The order [PR551085] is based on the draft order provided by the AMWU and will be issued in conjunction with this decision.

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 Australasian Food Group Pty Ltd trading as Peters Ice Cream, sought an injunction to prevent the employer from interfering with a proposed ballot of employees regarding protected industrial action. The matter was heard in the Federal Court of Australia. The Union alleged that the employer had attempted to influence the outcome of the ballot by providing misleading information to employees and interfering with the distribution of the ballot papers. The employer, on the other hand, argued that it had merely sought to provide employees with information to enable them to make an informed decision.

The legal issues before the court included whether the employer had indeed interfered with the ballot process and, if so, whether such interference was justified under the Fair Work Act 2009. The court had to determine the extent of the employer's obligations under the Act in relation to protected industrial action and whether the employer's actions were reasonable and proportionate in the circumstances. The court also needed to consider the appropriate remedy if the employer's conduct was found to be unlawful.

The court found that the employer had indeed interfered with the ballot process by providing misleading information to employees and attempting to influence the outcome of the ballot. The court held that such interference was not justified under the Act and constituted an unfair labour practice. The court further found that the employer's conduct had the potential to undermine the integrity of the ballot process and the rights of employees to engage in protected industrial action. The court granted the Union's application for an injunction, restraining the employer from interfering with the ballot process and requiring it to take steps to ensure that employees received accurate and impartial information about the proposed industrial action. The court also ordered the employer to pay the Union's costs of the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established