Australian Workers' Union v ASC Pty Ltd

[2024] FWC 609

[2024] FWC 609

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

ASC Pty Ltd

(B2024/191)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 8 MARCH 2024

Proposed protected action ballot of employees of ASC Pty Ltd

1. 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 ASC Pty Ltd (ASC or Employer). 

1. I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)[1] and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)[2] have made separate applications for a protected action ballot order in relation to the same proposed enterprise agreement.

1. On 6 March 2024, the Commission was advised that ASC, in effect, did not object to the Application as amended.[3]

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

1. On the basis of the material before me, including the declaration of Mr Nathan Crack 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.

1. 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 24 April 2024.[4] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. An order has been separately issued in PR772145.

1. This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matters (B2024/184 and B2024/186). 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] B2024/184.

[2] B2024/186.

[3] An amended application was filed by the AWU in response to the Commission’s request to clarify uncertainties regarding the employees to be balloted. No objection was raised by the ASC to the amended application.

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

Sch. 3, Item 20A(4) - Application to extend default period for agreement-based transitional instruments - Sleeper Pty Ltd T/A Oporto Melbourne Central - Re Sleeper Pty Ltd - Certified Agreement 2004-2007 - [2024] FWCFB 149 - 15 March 2024 - Slevin DP
s.604 - Appeal of decisions - Appeal by Pecker Maroo Verano Pty Ltd - Re - [2024] FWCFB 147 - 14 March 2024 - Asbury VP
Sch. 3A, Item 26A(4) - Application to extend default period for Division 2B State employment agreements - SSUT Pty Ltd T/A East End Hotel - Re East End Hotel Certified Agreement - [2024] FWCFB 130 - 14 March 2024 - Slevin DP
Sch. 3, Item 20A(4) - Application to extend default period for agreement-based transitional instruments - Bunk (Qld) Pty Ltd T/A Bunk Backpackers - Re Bunk (Qld) Pty Ltd Certified Agreement - 2003-2006 - [2024] FWCFB 146 - 14 March 2024 - Slevin DP