In the recent decision of AMWU & AWU v Premium Wine Brands
Pty Limited  FWA 1328, Fair Work Australia (FWA) ordered a
Protected Ballot Action Order (PABO) for the unions to take
protected industrial action in circumstances where excessive wage
claims were made.
The Australian Manufacturing Workers Union
(AMWU) and the Australian Workers Union
(AWU) applied to FWA for a PABO after failing to
reach agreement, including a significant initial wage increase plus
a 5% increase per year for the life of the proposed agreement.
Premium Brands operates a major wine producing and manufacturing
facility in the Barossa Valley in South Australia. The current
enterprise agreement expired on 28 February 2007. The
applicant unions wrote to Premium Brands in May 2010 looking to
bargain for a new enterprise agreement.
After issuing the Notice of Employee Representational Rights,
meetings were held between the parties and a number of in principle
agreements were reached around particular matters. However, some
key threshold issues between the parties remained unresolved,
including wage increases, rostered days off and disciplinary
Premium Brands challenged the authenticity of the applicant
unions' motivation and intentions for seeking the PABO, in
There was some early dispute around the representation of the
AMWU and that the union had not acted appropriately in that
The wage claims made by the applicant unions were excessive and
that there had been no compromise from the employer's
The applicant unions had failed to inform the employer that
they were going to seek a PABO.
There was an apparent attempt by the applicant unions to punish
Premium Brands as part of the positioning of the unions within the
Ultimately, the employer argued that the PABO applications were
premature and that negotiations on key points were not yet
Commissioner Hampton found that a failure to make concessions
(even in circumstances of excessive wage claims) or to reach
agreement is not in itself a lack of 'good faith' as
defined in the Fair Work Act 2009 (Cth) (FW
Act). The fact that the applicant unions and their
members have a different view to the employer on the appropriate
future wage outcome is a matter for bargaining.
In granting the applicant union's PABO, Commissioner Hampton
went on to say that it well may be that the unions have adopted a
more robust position in these negotiations than in the past,
however even if that is the case, this is not indicative of a lack
of genuine desire to make an agreement.
Under the FW Act, even where a PABO is granted and subsequent
protected industrial action is then taken, parties remain subject
to the statutory good faith bargaining obligations.
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should not be relied on as a substitute for professional advice.
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