Australian Workers' Union v Keppel Prince Engineering Pty Ltd Summary

[2024] FWC 559

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Keppel Prince Engineering Pty Ltd

(B2024/171)

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 Workshops.

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 PR771975.

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) sought a protected action ballot order from the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 in relation to employees of Keppel Prince Engineering Pty Ltd (Keppel) who are covered by the Keppel Prince Enterprise Agreement 2021 for Workshops. The AWU's application was made in the context of ongoing negotiations with Keppel, and the Australian Manufacturing Workers' Union (AMWU) had also applied for a similar order regarding the same enterprise agreement. The FWC received the application on 1 March 2023, and Keppel indicated it had no objections to the ballot. The Deputy President Hampton decided to resolve the matter based on the submitted documents without a hearing.

The primary legal issues for the FWC to address were whether the AWU had met all the conditions outlined in section 443(1) of the Fair Work Act for the application of a protected action ballot order and whether the timing for conducting the ballot was appropriate. The FWC examined the declaration from Mr Rob Saunders on behalf of the AWU, which detailed the steps taken in negotiations and confirmed the union's genuine efforts to reach an agreement with Keppel. The Deputy President Hampton determined that the AWU had fulfilled all necessary requirements, including the notification period for the proposed agreement.

The FWC concluded that the application met all the criteria for a protected action ballot, and issued an order specifying the ballot's parameters. The Australian Electoral Commission was designated to conduct the ballot, with voting to close on 18 April 2024. This date was set to ensure that the ballot period complied with section 448A(2) of the Act and the practical needs of the Australian Electoral Commission. The matter was subsequently assigned to another FWC member for the compulsory conciliation conference, ensuring that all parties would engage in meaningful negotiations.

The final orders included the determination of the ballot period, the assignment of the compulsory conciliation conference, and the requirement for additional bargaining representatives to attend the conference. The FWC aimed to facilitate effective negotiations between the AWU, the AMWU, and Keppel to reach a new enterprise agreement. The orders were issued to ensure that the parties were prepared to engage in the conciliation conference, with potential further directions to ensure readiness for meaningful negotiations.

Australian Workers' Union 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