Australian Workers' Union, The v Keppel Prince Engineering Pty Ltd Summary

[2024] FWC 561

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union, The
v

Keppel Prince Engineering Pty Ltd

(B2024/173)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 4 MARCH 2024

Proposed protected action ballot of employees of Keppel Prince Engineering 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 Keppel Prince Engineering Pty Ltd (Keppel or Employer) who are currently covered by the Keppel Prince Enterprise Agreement 2021 for the Portland Aluminium Site.

I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.[1]

On 1 March 2023, the Commission was advised that Keppel, 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 Rob Saunders on behalf of the AWU, 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 them, 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 Australian Electoral Commission. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 18 April 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR771979.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter (B2024/170). To the extent that this matter involves any additional bargaining representatives, the Commission will also issue the Order requiring their 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] B2024/170.

[2] This is, in effect, 30 working days from the making of the Order, as sought in the Application. This is also the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

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 Keppel Prince Engineering Pty Ltd, which operates the Portland Aluminium Site. The application pertains to employees who are covered by the Keppel Prince Enterprise Agreement 2021. The AWU sought the order to facilitate a ballot for potential protected industrial action. The Australian Manufacturing Workers’ Union (AMWU) has filed a separate application concerning the same agreement. The employer, Keppel Prince Engineering Pty Ltd, did not object to the AWU's application, allowing the matter to be decided based on the submitted documents without the need for a hearing.

The primary legal issue the Commission needed to address was whether the AWU had satisfied the statutory requirements to conduct a ballot under the Fair Work Act 2009. Specifically, the Commission had to determine if there was a notification period for the proposed agreement and whether all the conditions under section 443(1) of the Act were fulfilled. The AWU submitted a declaration by Mr Rob Saunders, which detailed the union's efforts in bargaining with the employer and its genuine attempts to reach an agreement. The Commission considered this evidence to confirm that the requirements for a ballot were met.

In its decision, the Fair Work Commission found that the AWU had met the statutory criteria for a protected action ballot. The Commission was satisfied with the declaration from the AWU, which outlined the steps taken in the bargaining process and the union's genuine efforts to reach an agreement with the employer. As a result, the Commission granted the AWU's application and set the closing date for the ballot as 18 April 2024, allowing the Australian Electoral Commission to conduct the ballot. The Commission also noted that another member would handle the compulsory conciliation conference related to the agreement, with the aim of facilitating meaningful negotiations between the parties.

Australian Workers' Union, The v Keppel Prince Engineering Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established