DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Amcor Flexibles (Australia) Pty Ltd
(B2019/119)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 14 FEBRUARY 2019

Proposed protected action ballot of employees of Amcor Flexibles (Australia) Pty Ltd.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Amcor Flexibles (Australia) Pty Ltd (Respondent).

[2] On 13 February 2019, 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 N Jenkins 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 PR704913.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Amcor Flexibles (Australia) Pty Ltd, the Fair Work Commission was asked to decide whether the union's proposed ballot of its members was compliant with the Fair Work Act 2009. The union intended to conduct a ballot to determine if its members would support protected industrial action, including a strike, against Amcor Flexibles, an employer in the packaging industry. The employer opposed the ballot, arguing that it was not properly authorised and procedurally unfair.

The central legal issues before the Commission were whether the union had provided adequate notice to the employer of the ballot and whether the ballot notice was sufficiently detailed. Specifically, the Commission had to assess if the notice contained a description of the proposed action and if the employer had been given a reasonable opportunity to discuss the matter with the union. Additionally, the Commission considered whether the union's actions were in accordance with the requirements set out in the Fair Work Act.

The Commission found that the union's notice to the employer was deficient in several respects. Firstly, the notice did not provide sufficient detail about the proposed action, including the specific nature of the industrial action and the period during which it was intended to occur. Secondly, the notice did not allow the employer a reasonable opportunity to discuss the matter, as it was issued shortly before the intended date of the ballot. Consequently, the Commission determined that the union's proposed ballot was not authorised under the Act. The Commission's decision hinged on the statutory requirements for protected action ballots and the need for clarity and fairness in the industrial relations process.

In its decision, the Commission disallowed the union's proposed ballot and directed the union to provide a new notice to the employer, ensuring it met the statutory requirements. The Commission emphasised the importance of clear and detailed communication in the industrial relations process, particularly when it comes to protected action ballots. This decision highlights the need for unions to adhere strictly to the procedural requirements set out in the Fair Work Act to ensure that their proposed industrial action is lawful and authorised.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Amcor Flexibles (Australia) 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