Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v O-I Operations (Australia) Pty Ltd
Citation: [2019] FCA 1272
What happened
AMWU and CEPU unions organized protected industrial action (bans on maintenance work) at an O-I glass manufacturing plant in Spotswood, Victoria, during enterprise agreement negotiations. The employer responded by deploying management and salaried staff to perform maintenance work normally done by covered employees. The enterprise agreement's clause 17 provided that staff should only use tools in emergencies, safety situations, training, or diagnosis—not regular work. The action reduced the impact of protected industrial action.
What was decided
The Federal Court granted an interlocutory injunction restraining the employer from requiring or permitting management/salaried staff to perform work normally performed by covered employees except in limited circumstances defined by the enterprise agreement. The Court found a prima facie strong case that deploying management staff contravened the enterprise agreement (s.50 FWA) and that this constituted adverse action under s.340 (undermining employee organizations' industrial action by making their action ineffective).
What it means for employers
During protected industrial action, employers cannot undermine the action's effect by using management or salaried staff outside the scope permitted by enterprise agreements. If an agreement restricts when non-covered staff can perform covered work (e.g., emergencies only), using them routinely during industrial action bans may breach the agreement and constitute unlawful adverse action. Careful compliance with enterprise agreement provisions is essential.
What it means for employees
Enterprise agreement protections limiting management work performance are enforceable and protect the effectiveness of industrial action. If employers undermine protected action by circumventing coverage restrictions, courts may grant urgent injunctions to restore the action's intended effect. Employees can seek court orders preventing misuse of non-covered staff during legitimate workplace disputes.
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This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections