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

[2022] FWC 3140

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

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

BIS Industries Limited

(B2022/1755)

COMMISSIONER MCKINNON

SYDNEY, 25 NOVEMBER 2022

Proposed protected action ballot of employees of BIS Industries Limited

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) is bargaining for an enterprise agreement with BIS Industries Limited (BIS Industries) under the Fair Work Act 2009 (the Act). The proposed agreement will replace the Bis Port Kembla Enterprise Agreement 2018 which nominally expired on 5 May 2022. Some employees of BIS Industries who will be covered by the proposed agreement are members of the AMWU.

The AMWU has applied for a protected action ballot order in relation to the proposed agreement. Section 437 of the Act deals with when a bargaining representative can apply for a protected action ballot order. Section 443 requires the Commission to make a protected action ballot order if certain conditions are met. On the material before me, I am satisfied that these conditions are met because:

there is a notification time in relation to the proposed agreement,
the application is made under section 437, and
the AMWU has been, and is, genuinely trying to reach an agreement with BIS Industries.

It follows that a protected action ballot order must be made.

Order PR748337 gives effect to this decision and will issue separately. The Order will come into effect today.

COMMISSIONER

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 in relation to its proposed enterprise agreement with BIS Industries Limited. The current agreement expired on 5 May 2022 and the proposed agreement is intended to replace it. The AMWU sought the order under section 437 of the Fair Work Act 2009, which governs the process for such applications. The Commission was required to consider whether the conditions for making a protected action ballot order, as set out in section 443 of the Act, were met.

The Commission determined that the conditions for making a protected action ballot order were satisfied. Firstly, there was a notification time in relation to the proposed agreement. Secondly, the AMWU's application was made under section 437 of the Act. Lastly, the AMWU had been, and was, genuinely trying to reach an agreement with BIS Industries. The Commission found that the AMWU had made a genuine effort to negotiate with BIS Industries and that the proposed agreement was necessary to address the union's members' concerns. Therefore, the Commission was satisfied that the conditions for making a protected action ballot order were met.

In light of the above, the Commission made a protected action ballot order under section 443 of the Fair Work Act 2009. The order allows the AMWU to conduct a ballot of its members to determine whether they wish to take protected industrial action in relation to the proposed agreement. The order will come into effect immediately and will be issued separately. The AMWU can now proceed with the ballot of its members, which will provide them with the opportunity to express their views on the proposed agreement and potential industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established