Australian Workers' Union v Boom Logistics Ltd

[2024] FWC 1856

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Boom Logistics Ltd

(B2024/893)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 16 JULY 2024

Proposed protected action ballot of employees of Boom Logistics Ltd

This is an application by the Australian Workers’ Union (AWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Boom Logistics Ltd (Boom or Employer).

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

On 15 July 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 Warren Jones, 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 Boom, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

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 25 July 2024.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR777036.

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. That Member will issue an Order requiring the attendance of all bargaining representatives for 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] B2024/895.

[2] B2024/896.

[3] This is, in effect, 7 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) has applied to the Fair Work Commission for an order allowing a protected action ballot among certain employees of Boom Logistics Ltd. This application was made under section 437 of the Fair Work Act 2009. The AWU seeks to conduct the ballot in relation to an enterprise agreement, and the application was supported by the Employer. The Australian Manufacturing Workers' Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia have each made similar applications in relation to the same proposed enterprise agreement.

The Fair Work Commission was required to determine whether the AWU had met the statutory requirements for a protected action ballot, including the notification time for the proposed agreement and the genuine efforts to reach agreement with the Employer. The Deputy President Hampton was satisfied, based on the material before the Commission, that the AWU had genuinely tried to reach agreement with the Employer and that all requirements for a ballot had been met. The Commission also determined that Democratic Outcomes Pty Ltd (CiVS) was an approved ballot agent, and set a closing date for voting on 25 July 2024.

The Fair Work Commission decided to grant the AWU's application for a protected action ballot order. The Deputy President Hampton determined that the AWU had met all statutory requirements and that the ballot should proceed. The Commission also determined that CiVS was an approved ballot agent and set a closing date for voting on 25 July 2024. The matter will be assigned to another Member of the Commission to conduct a compulsory conciliation conference. The Deputy President Hampton issued an Order requiring the attendance of all bargaining representatives for the proposed enterprise agreement at the conference. Directions will likely be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

This decision allows the AWU to proceed with the ballot among certain employees of Boom Logistics Ltd. The Commission's determination that the AWU had met all statutory requirements and that the ballot should proceed is significant. The setting of a voting deadline and the assignment of another Member of the Commission to conduct a compulsory conciliation conference will likely facilitate meaningful negotiations between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established