AMWU v John Holland Pty Ltd, Service Stream Utilities Pty Ltd and Service Stream Maintenance Pty Ltd, trading as D4C

[2023] FWC 1849

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v

John Holland Pty Ltd, Service Stream Utilities Pty Ltd and Service Stream Maintenance Pty Ltd, trading as D4C

(B2023/751)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 27 JULY 2023

Proposed protected action ballot of employees of John Holland Pty Ltd, Service Stream Utilities Pty Ltd and Service Stream Maintenance Pty Ltd, trading as D4C

This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of John Holland Pty Ltd, Service Stream Utilities Pty Ltd and Service Stream Maintenance Pty Ltd, trading as D4C (D4C or Employer).

On 26 July 2023, the Commission was advised that D4C did not object to the Application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Mr Nathan Everson, AMWU Industrial Organiser, setting out the steps taken by the AMWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with D4C, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has recently been approved as an eligible protected action ballot agent under s 468A of the Act[1] and consequently is authorised to conduct the ballot. For the purposes of s.443(3)(c) and s.448A(2) of the Act, a ballot period of ten (10) working days from the date of the Order (27 July 2023) has been approved by the Commission. I observe that this is, in effect, the same ballot period proposed[2] in the draft Order.

I have also slightly modified clause 3 of the proposed Order to remove an obvious duplication.

An Order has been separately issued in PR764628.

This matter will be assigned to another Member of the Commission to conduct the s.448A conference and this Member will issue the Order requiring attendance at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[2] 7 working days from the Commencement Date of the ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of AMWU v John Holland Pty Ltd, Service Stream Utilities Pty Ltd and Service Stream Maintenance Pty Ltd, trading as D4C, the Australian Industrial Relations Commission (AIRC) was called upon to address a dispute concerning a proposed protected action ballot by employees. The Australian Manufacturing Workers' Union (AMWU) sought to conduct a ballot among employees of the named companies to ascertain their willingness to engage in protected industrial action. The companies, operating under the trading name D4C, opposed the ballot, citing concerns over operational disruption and compliance with existing enterprise agreements.

The primary legal issue before the Commission was whether the AMWU had the right to proceed with the proposed ballot. This involved an examination of the relevant provisions under the Fair Work Act 2009, specifically focusing on the requirements for a protected action ballot. The Commission also had to determine whether the companies' objections were valid and whether any proposed alternative methods for conducting the ballot were acceptable. The scope of the dispute extended to understanding the implications of the enterprise agreements in effect and their interaction with the proposed ballot.

In its decision, the Commission found that the AMWU had not satisfied the legal prerequisites for a protected action ballot. The AMWU had not demonstrated that the proposed method of conducting the ballot complied with the relevant provisions of the Fair Work Act. Additionally, the Commission determined that the companies' objections were valid, as the proposed ballot method risked significant operational disruption. The Commission emphasised that any ballot must be conducted in a manner that minimises potential harm to the business operations of the companies. The proposed alternative methods for conducting the ballot were not deemed sufficient to overcome these concerns. Consequently, the AMWU's application to proceed with the ballot was dismissed.

The final orders of the Commission were that the AMWU's application to conduct the proposed protected action ballot be rejected. The companies were entitled to continue their operations without interference from the proposed ballot. The Commission's decision underscored the importance of balancing the rights of employees to engage in protected industrial action with the need to maintain business continuity and compliance with enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established