“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union v Hospira Australia Pty Ltd

[2014] FWC 3102

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
Hospira Australia Pty Ltd
(B2014/88)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 12 MAY 2014

Proposed protected action ballot by employees of Hospira 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 (the 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 Hospira Australia Pty Ltd (Hospira). The application was made to the Fair Work Commission (the Commission) on 8 May 2014.

[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 ten occasions since it served a log of claims on the Respondent on or about 7 February 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] On 9 May 2014, Mr Chris Kagiaros, Director - Human Resources, International Operations - Pharma, at Hospira advised that Hospira had concerns regarding the AMWU’s application and wanted to be heard on the terms of the application.

[4] In the circumstances, I convened a conference on 12 May 2014 to discuss the application. Hospira indicated there were exceptional circumstances justifying the period of written notice being extended to seven working days and relied upon my decision in National Union of Workers v Hospira Australia Pty Ltd[2014] FWC 1836 in support of that contention. Hospira did not contend that the AMWU had not been or is not genuinely trying to reach an agreement with it. Following further discussions between the parties, it was agreed that seven working days notice of industrial action would be provided by the AMWU to Hospira.

[5] Section 443(1) of the Act provides that:

“(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.”

[6] Further, s.441(1) of the Act requires that the Commission “must, as far as practicable, determine an application for a protected action ballot order within two working days after the application is made”.

[7] On the basis of the material before me, I am satisfied the requirements in s.443(1) of the Act have been met.

[8] Accordingly, I will make an order. The order (PR550483) is based on the draft order provided by the AMWU, and reflects the agreement of the parties on the provision of seven working days written notice of industrial action. The order will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Australian Manufacturing Workers' Union versus Hospira Australia Pty Ltd, the Fair Work Commission was called upon to address a dispute concerning a proposed industrial action ballot by employees of Hospira Australia Pty Ltd. The dispute revolved around the union's intention to conduct a ballot among its members to ascertain their willingness to engage in protected action, specifically a strike, in pursuit of better working conditions and remuneration.

The principal legal issue before the Commission was whether the proposed protected action complied with the requirements outlined in the Fair Work Act 2009. In particular, the Commission needed to determine whether the ballot notice provided to Hospira Australia Pty Ltd was adequate and whether the union had correctly followed the procedures mandated by the Act. Additionally, the Commission had to consider whether the proposed action was related to a genuine dispute between the employees and their employer, as required by the Act.

The Fair Work Commission deliberated on the union's compliance with procedural obligations and the appropriateness of the proposed action. The Commission found that the union had adhered to the requisite procedures, ensuring that the ballot notice was sufficiently detailed and that the employees were informed of their rights and obligations. Furthermore, the Commission concluded that the proposed action was indeed related to a genuine dispute concerning the employees' working conditions and remuneration. Consequently, the Commission ruled in favour of the union, allowing the ballot to proceed. The decision was grounded in the Commission's determination that the union had met all statutory requirements and that the proposed action was justified under the Act.

The Fair Work Commission ordered that the union's proposed protected action ballot be permitted to proceed, subject to the union providing the employer with the necessary information and details as required by the Fair Work Act 2009. This ruling enabled the employees to express their views on the proposed industrial action, thereby facilitating a resolution to the dispute concerning their working conditions and remuneration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established