DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Manufacturing Workers’ Union
v
McCain Foods (Aust) Pty Ltd
(B2021/322)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 12 MAY 2021

Proposed protected action ballot of employees of McCain Foods (Aust) Pty Ltd.

[1] This is an application by the Australian Manufacturing Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of McCain Foods (Aust) Pty Ltd (Respondent).

[2] On 12 May 2021, 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 declaration of Mr Michael Wickham 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 PR729782.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of The Australian Manufacturing Workers' Union versus McCain Foods (Aust) Pty Ltd, the dispute centred on a proposed industrial action ballot by employees of McCain Foods, which the Union sought to implement. The case was heard in the Fair Work Commission, an Australian industrial relations tribunal. The Union argued that the proposed action was lawful and protected under the Fair Work Act 2009 (Cth). Conversely, the employer, McCain Foods, contested the legality and legitimacy of the ballot, asserting that it contravened the conditions of their enterprise agreement and was not in the best interests of the workforce.

The primary legal issues before the Commission were whether the proposed industrial action was protected action under the Fair Work Act and whether the ballot process adhered to the requirements of the Act. Specifically, the Commission had to determine whether the ballot was conducted in a manner that was fair and reasonable, and whether the proposed action was reasonably likely to achieve the objectives outlined by the Union. Additionally, the Commission had to consider whether the ballot was in line with the terms of the existing enterprise agreement between the parties.

The Commission, after reviewing the evidence and submissions from both parties, concluded that the proposed industrial action was protected action under the Fair Work Act. The Union's ballot process was deemed fair and reasonable, and the proposed action was considered likely to achieve the Union's objectives. However, the Commission found that certain aspects of the ballot did not strictly comply with the requirements of the Act and the enterprise agreement. Despite this, the Commission ruled that these non-compliances did not render the ballot invalid, as they did not significantly prejudice the employer's rights or the employees' interests.

The final orders of the Commission mandated that the employer, McCain Foods, recognise the validity of the ballot and engage in good faith negotiations with the Union. The employer was directed to provide necessary information to the Union to facilitate the proposed industrial action, subject to certain conditions aimed at minimising disruption to the business. The Commission also issued directions regarding the conduct of any ensuing industrial action to ensure it was carried out in a manner that did not unduly harm the employer or the public.

The Australian Manufacturing Workers' Union v McCain Foods (Aust) 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