Australian Workers' Union, The v G James Extrusion Co Pty Ltd T/A G. James Furniture Co

[2023] FWC 2330

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union, The

G James Extrusion Co Pty Ltd T/A G. James Furniture Co

(B2023/971)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 13 SEPTEMBER 2023

Proposed protected action ballot of employees of G James Extrusion Co Pty Ltd

This is an application by the Australian Workers’ Union (AWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of G James Extrusion Co Pty Ltd trading as G. Furniture Co (G. James Furniture Co or Employer).
On 13 September 2023, the Commission was advised that James Co, in effect, 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 James Downie, AWU Organiser, setting out the steps taken by the AWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with G. James Furniture Co, 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.
For the purposes of s.443(3)(c) of the Act, and in consultation with the parties, the Commission has determined that the date by which voting is to close is 26 October 2023.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I am satisfied that there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) of the Act being longer than three working days. Pursuant to s.443(5) the period of notice required under s.414(2)(a) of the Act in each case of industrial action will be five working days.[2]
An Order has been separately issued in PR766125.
This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement 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] This is, in effect, 30 working days from the date of the Order which is the minimum period required by the Australian Electoral Commission.

[2] This has been reflected into the Order in different terms than proposed, but with the same effect.

Printed by authority of the Commonwealth Government Printer

< PR766122>

CaseChat Overview and Summary

The Australian Workers' Union (AWU) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of G James Extrusion Co Pty Ltd trading as G. James Furniture Co. The application was made to allow the employees to vote on proposed protected industrial action. G James Extrusion Co Pty Ltd, referred to as the Employer, did not object to the application, leading the Commission to determine the matter on the submitted documents without holding a hearing.

The key legal issues before the Commission were whether the AWU had genuinely attempted to reach an agreement with the Employer and if all requirements under section 443(1) of the Act had been satisfied. Section 443(1) outlines the conditions that must be met for a ballot order to be issued, including that the union has genuinely attempted to negotiate in good faith with the employer. Additionally, the Commission needed to determine if there were exceptional circumstances that warranted extending the notice period for industrial action beyond the standard three working days, as stipulated in section 414(2)(a) of the Act.

In reaching its decision, the Commission considered the declaration by Mr. James Downie, AWU Organiser, which detailed the steps taken by the AWU in bargaining with the Employer and confirmed that the union had genuinely tried to reach an agreement. The Commission was satisfied that all the necessary conditions under section 443(1) of the Act had been met. Furthermore, the Commission found that there were exceptional circumstances justifying a longer notice period than the standard three working days. Consequently, the Commission decided that the notice period for each instance of industrial action would be extended to five working days, as per section 443(5) of the Act. The Commission also set the closing date for the ballot as 26 October 2023, which is the minimum period required by the Australian Electoral Commission, effectively establishing the ballot period for the purposes of section 448A(2) of the Act.

The final orders included an extension of the notice period to five working days and the setting of the ballot closing date as 26 October 2023. Additionally, the matter was assigned to another Member of the Commission for a compulsory conciliation conference under section 448A. An order was issued to require the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference, and directions were likely to be issued to ensure the parties engaged in meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established