"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Air Liquide Australia Limited

[2024] FWC 1526

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v

Air Liquide Australia Limited

(B2024/750)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 12 JUNE 2024

Proposed protected action ballot of employees of Air Liquide Australia Limited

This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU 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 Air Liquide Australia Limited (Air Liquide or Employer).

On 12 June 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 Stuart Gordon, Assistant State Secretary, setting out the steps taken by the AMWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with it, 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 24 July 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 PR775924.

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, 30 working days from the making of the Order as sought in the application and required by the AEC.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers’ Union (AMWU) applied to the Fair Work Commission for a protected action ballot order regarding certain employees of Air Liquide Australia Limited. This application was made under section 437 of the Fair Work Act 2009. The AMWU sought the order to conduct a ballot for potential protected industrial action, indicating a dispute over the terms of an enterprise agreement. Air Liquide did not object to the application, allowing the Commission to proceed with the matter based on the documentation submitted.

The primary legal issue before the Deputy President was whether the AMWU had satisfied the requirements set out in section 443(1) of the Fair Work Act. This involves verifying that the union genuinely attempted to reach an agreement with the employer and that the proposed agreement has a notification period. Additionally, the Commission had to ensure that the ballot would be conducted by the Australian Electoral Commission and determine the closing date for voting. The AMWU provided a declaration from Stuart Gordon, Assistant State Secretary, confirming the union’s efforts and compliance with the Act’s requirements.

After reviewing the materials, the Deputy President determined that the AMWU had met all the statutory conditions. The union's efforts to negotiate with Air Liquide were genuine, and the proposed agreement had a notification period. The Deputy President set the closing date for voting as 24 July 2024, effectively establishing the ballot period. An order was issued for the ballot to be conducted by the Australian Electoral Commission, and another order was made to assign the matter for a compulsory conciliation conference. Further, the Deputy President issued an order requiring all bargaining representatives to attend this conference and directed them to be prepared for meaningful negotiations.

The Fair Work Commission issued an order granting the AMWU’s application for a protected action ballot. The ballot must be conducted by the Australian Electoral Commission and will close on 24 July 2024. Additionally, the matter was assigned for a compulsory conciliation conference, with orders issued to ensure the presence of all bargaining representatives and their readiness to negotiate effectively.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established