Australian Workers' Union v G James Extrusion Co Pty Ltd

[2024] FWC 2224

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

G James Extrusion Co Pty Ltd

(B2024/1052)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 20 AUGUST 2024

Proposed protected action ballot of employees of G James Extrusion Co Pty 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 G James Extrusion Co Pty Ltd (G James or Employer).

On 20 August 2024, the Commission was advised that the Employer, 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 James Downie, 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, 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 9 September 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

The structure of the draft order has been amended to reflect the Fair Work Commission’s standard template.

An Order has been separately issued in PR778487.

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 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, 14 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) applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of G James Extrusion Co Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, which allows for a ballot to be held if an agreement cannot be reached during bargaining. The employer did not object to the application, allowing the matter to be determined on the papers without a hearing. The AWU had submitted a declaration by James Downie, an Organiser, detailing the union's efforts to reach an agreement with the employer.

The Commission had to determine whether the requirements under section 443(1) of the Fair Work Act were met, ensuring that all conditions for a protected action ballot were satisfied. This included verifying that a notification time for the proposed agreement existed and that the union had genuinely attempted to reach an agreement. The declaration provided by the AWU confirmed that these requirements were met. Furthermore, Democratic Outcomes Pty Ltd (CiVS) was appointed to conduct the ballot as it had been approved as an eligible agent under section 468A of the Act.

Based on the evidence and the absence of objections from the employer, the Deputy President of the Commission decided to grant the application. The Commission set the closing date for voting on the ballot as 9 September 2024, which was effectively 14 working days from the making of the order. This decision also established the ballot period under section 448A(2) of the Act. The Commission subsequently issued an order reflecting its standard template and assigned another member to conduct a compulsory conciliation conference, requiring the attendance of all bargaining representatives in the proposed enterprise agreement.

The final orders include the approval of the ballot process, the appointment of CiVS as the ballot agent, and the establishment of a timeline for the ballot. Additionally, the Commission directed that a compulsory conciliation conference be held to facilitate negotiations between the parties. This decision ensures that the process moves forward in a manner compliant with the Fair Work Act, providing a clear path for the employees to express their views through the ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established