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

[2023] FWC 1838

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-Radiators Pty Ltd

(B2023/748)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 26 JULY 2023

Proposed protected action ballot of employees of Air-Radiators Pty Ltd

This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Air-Radiators Pty Ltd (Air-Radiators or Employer).

On 26 July 2023, the Commission was advised that Air-Radiators 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 on behalf of the AMWU , 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 Air-Radiators, 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) and s.448A(2) of the Act, a ballot period of 30 working days from the date of the Order (26 July 2023) has been determined by this Commission.[1]

An order has been separately issued in PR764595.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. To the extent that this matter involves additional bargaining representatives for the proposed enterprise agreement, the Commission will issue a further 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] The application sought 28 days; however, 30 working days is the presently advised minimum period required by the Australian Electoral Commission.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU), acting on behalf of certain employees of Air-Radiators Pty Ltd, applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for an order enabling a protected action ballot. The dispute concerns the proposed protected action, and the application was filed on behalf of the employees to allow them to vote on the matter. Air-Radiators Pty Ltd did not oppose the application, leading the Commission to decide the matter without a hearing.

The legal issues before the Commission involved determining whether the AMWU had satisfied the prerequisites for a protected action ballot under the Fair Work Act. Specifically, the Commission had to consider if the union had genuinely attempted to reach an agreement with the employer and if the notification time for the proposed agreement had been met. The union's declaration, outlining their bargaining efforts and the genuine attempts to reach an agreement, was a crucial piece of evidence in this regard.

Upon reviewing the submitted material, the Deputy President of the Commission, Hampton, concluded that the AMWU had indeed met all the necessary requirements under section 443(1) of the Act. The union had genuinely attempted to negotiate with the employer and fulfilled the notification time for the proposed agreement. Consequently, the Commission granted the application and ordered that the ballot be conducted by the Australian Electoral Commission over a period of 30 working days. The Commission also assigned the matter to another member for a compulsory conciliation conference and indicated that additional bargaining representatives would be required to attend.

In summary, the Fair Work Commission accepted the AMWU's application for a protected action ballot, acknowledging the union's genuine efforts in bargaining with the employer. The Commission ordered the ballot to take place over 30 working days and scheduled a compulsory conciliation conference to facilitate further 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