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

[2023] FWC 1358

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

Applus Pty Ltd

(B2023/546)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 9 JUNE 2023

Proposed protected action ballot of employees of Applus 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) (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Respondent, Applus Pty Ltd (Respondent).

On 9 June 2023, the Commission was advised that the Respondent 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 Stephen Fodrocy of the AMWU, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, 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. A ballot period of 30 days from the date of the Order has been established by the Commission.

An order has been separately issued in PR762937.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers' Union (AMWU), which has applied to the Fair Work Commission (FWC) for a protected action ballot order under section 437 of the Fair Work Act 2009. The application is directed at certain employees of Applus Pty Ltd. The AMWU has sought to conduct a ballot to determine whether its members are willing to take protected industrial action against Applus Pty Ltd. The company did not object to the application, leading to the Commission deciding to determine the matter based on the submitted documentation without the need for a hearing.

The legal issues that the Commission was required to address include whether the AMWU had genuinely attempted to negotiate with Applus Pty Ltd and whether all the statutory requirements for conducting a ballot under the Fair Work Act were fulfilled. The AMWU needed to demonstrate that it had taken all necessary steps to reach an agreement with the employer and that a notification period for the proposed agreement existed. Furthermore, the Commission had to consider if the AMWU's application satisfied the conditions set out in section 443(1) of the Act.

In reaching its decision, the Deputy President of the Commission, Hampton, found that the AMWU had provided a declaration from Mr Stephen Fodrocy, which detailed the union's bargaining efforts and its genuine attempts to reach an agreement with Applus Pty Ltd. The Commission was satisfied that the union had met all the prerequisites for conducting a ballot, including the notification time requirement. Consequently, the application was approved, and an order was issued for the ballot to be conducted by the Australian Electoral Commission over a period of 30 days. A separate order was also issued in PR762937.

This decision underscores the importance of the procedural requirements that unions must adhere to when seeking to conduct a protected action ballot. The Commission's approval was based on the evidence of genuine bargaining efforts and the fulfillment of statutory obligations, thereby allowing the AMWU to proceed with the ballot as requested.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established