Australian Workers' Union, The v SMR Automotive Australia Pty Limited

[2024] FWC 860

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union, The
v

SMR Automotive Australia Pty Limited

(B2024/394)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 4 APRIL 2024

Proposed protected action ballot of employees of SMR Automotive Australia Pty Limited

This is an application by the Australian Workers’ Union (Applicant or AWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of SMR Automotive Australia Pty Ltd (SMR or Employer). This matter is related to B2024/397 and B2024/399.

On 3 April 2024, the Commission was advised that the Employer 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 Nathan Crack, Branch Official of the AWU, setting out the steps taken by the Applicant in bargaining with the Employer and that they have been, and are, genuinely trying to reach agreement with the Employer, 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, the Commission has determined that the date by which voting is to close is 17 May 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR773157.

This matter will shortly be listed for a s.448A compulsory conciliation conference. An Order will be issued requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. 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, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) made an application under section 437 of the Fair Work Act 2009 to the Fair Work Commission for a protected action ballot order in relation to certain employees of SMR Automotive Australia Pty Ltd. This application is part of an ongoing negotiation process for a proposed enterprise agreement between the AWU and SMR Automotive Australia Pty Ltd. The employer did not object to the application, leading the Deputy President to determine the matter on the basis of the written submissions and evidence provided. The AWU argued that it had been genuinely trying to reach an agreement with the employer and had fulfilled all requirements for initiating a ballot.

The legal issues before the Commission were whether the AWU had taken necessary steps to negotiate in good faith and whether all procedural requirements for a ballot under the Act had been met. The Commission had to assess if the notification period was correctly applied and if the application complied with section 443 of the Act. Additionally, the Commission needed to determine an appropriate closing date for the ballot to ensure the process was conducted within the legal timeframe.

The Deputy President found that the AWU had indeed taken steps to negotiate in good faith and that all requirements under section 443(1) of the Act were met. The Commission was satisfied with the evidence presented by the AWU, including the declaration of Nathan Crack, Branch Official of the AWU, confirming the union's efforts to reach an agreement with the employer. The Deputy President set the closing date for the ballot as 17 May 2024, which aligns with the 30 working days from the date of the order as requested in the application. This decision also established the ballot period for the purposes of section 448A(2) of the Act.

This decision led to the issuing of an order under PR773157. Additionally, the matter was scheduled for a compulsory conciliation conference under section 448A of the Act, to facilitate further negotiations between the parties. An order was issued requiring all bargaining representatives to attend this conference, with directions provided to ensure that meaningful negotiations would take place.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established