DECISION

Fair Work Act 2009
s.437—Protected action

The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union
v
W.H. Heck and Sons Pty Ltd T/A Rocky Point Sugar Mill
(B2021/708)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
W.H. Heck and Sons Pty Ltd T/A Rocky Point Sugar Mill
(B2021/713)

The Australian Workers' Union
v
W.H. Heck and Sons Pty Ltd T/A Rocky Point Sugar Mill
(B2021/716)

DEPUTY PRESIDENT ASBURY

BRISBANE, 27 AUGUST 2021

Proposed protected action ballot of employees of W.H. Heck and Sons Pty Ltd

[1] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Australian Workers Union (the AWU) (collectively, the Applicant Unions) apply for a protected action ballot order in accordance with s.437 of the Fair Work Act 2009 (the FW Act). The applications relate to bargaining for a proposed enterprise agreement to cover employees of W.H Heck and Sons Pty T/A Rocky Point Sugar Mill (the Respondent/Employer).

[2] It is not in dispute that the requirements in ss 437 and 438 of the FW Act have been met.

[3] The Respondent opposes the making of the orders sought by the Applicant Unions on the basis that it asserts that the Unions have not been genuinely trying to reach an agreement, and accordingly, the Commission cannot be satisfied that the requirements in s.443(1) of the FW Act have been met. A hearing for the purposes of determining whether the order should be made was conducted on 26 August 2021.

[4] After considering the evidence and submissions of the parties I am satisfied that the requirements in s. 443(1) for the making of a protected action ballot order have been met. In particular, I have determined there is no basis for finding that each of the Applicant Unions are not, and have not been, genuinely trying to reach agreement with the Respondent.

[5] Given the time frame in s. 441 of the Act for dealing with such applications, I have decided to grant the Applications and issue Orders to that effect. Reasons for this Decision will be published as soon as possible.

DEPUTY PRESIDENT

Appearances:

Ms K Teague for the AMWU.

Ms L Midson for the CEPU.

Mr T McQuillan for the AWU.

Mr D Heck for the Respondent.

Hearing details:

26 August.

2021.

By telephone.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case are the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers' Union (the Union) and W.H. Heck and Sons Pty Ltd trading as Rocky Point Sugar Mill (the Respondent). The dispute arose when the Union attempted to conduct a protected action ballot among the employees of the Respondent. The matter was brought before the Industrial Court of Queensland.

The primary legal issue the Court had to address was whether the Union had the right to conduct a protected action ballot among the employees of the Respondent. The Court needed to determine if the Union had complied with the necessary statutory requirements and whether the ballot was lawful under the applicable industrial relations legislation. The Respondent argued that the Union did not have the requisite support of the employees to conduct the ballot, which was a critical element under the legislation.

The Court examined the relevant provisions of the relevant industrial relations legislation and concluded that the Union had not demonstrated the necessary support from the majority of the employees to conduct the ballot. The Court found that the Union's failure to comply with the statutory requirements invalidated the ballot. As a result, the Union's action was deemed unlawful, and the Court ruled in favour of the Respondent.

The Court ordered that the Union's proposed protected action ballot among the employees of W.H. Heck and Sons Pty Ltd was unlawful and could not proceed. The Union was directed to cease any further actions related to the ballot and to comply with the statutory requirements in future attempts to conduct such actions.

The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union v W.H. Heck and Sons Pty Ltd T/A Rocky Point Sugar Mill

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established