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

[2024] FWC 3544

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

BOC Limited

(B2024/1662)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 23 DECEMBER 2024

Proposed protected action ballot of employees of BOC 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 BOC Limited (BOC or Employer).

On 19 December 2024, the Commission was advised that the Employer objected to the Application on grounds relating to the drafting and impact of the ballot questions set out in the draft order.

In the circumstances, I have conducted a hearing on 20 December 2024 to determine the matter. During the course of the hearing, the parties engaged in discussions and ultimately reached some common ground on the terms of the proposed order. I have granted leave to amend the application to adopt that proposal. Further, I have determined the terms of clause 5 of the ultimate Order on the basis that it is desirable, given the particular circumstances of this matter and the nature of the safety undertaking provided, that the detail of that undertaking be disclosed to the employees as part of the ballot. In particular, the detail of the undertaking and how it is to operate is important information that puts the reference to “maintaining safety” in the ballot questions in the full context.

On the basis of the material before me, including the declaration of Rebecca Muratore, National Organising Co-ordinator, 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 BOC, 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 Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

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 9 January 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

Some clauses in the amended draft order have been amended to remove the duplications and to adopt the Commission’s standard provisions.

An Order has been separately issued in PR782662.

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, 10 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers' Union (AMWU), applied to the Fair Work Commission (FWC) for a protected action ballot order against BOC Limited. The application was made under section 437 of the Fair Work Act 2009, seeking to allow employees to vote on a proposed protected action. The employer objected to the application, raising concerns about the drafting and impact of the ballot questions. Consequently, a hearing was conducted on 20 December 2024 to address these objections. During the hearing, the parties discussed and reached an agreement on the terms of the proposed order, leading to an amendment of the application. The Deputy President Hampton granted leave to amend the application and determined the terms of clause 5 of the order, considering the importance of the safety undertaking provided by the union in the context of the ballot.

The legal issues before the court included whether the union had met the requirements under section 443 of the Fair Work Act for a protected action ballot and whether the proposed ballot questions were appropriately drafted. The court considered the union's efforts in bargaining with the employer, as evidenced by the declaration of Rebecca Muratore, the National Organising Co-ordinator of the AMWU, who attested to the union's genuine attempts to reach an agreement with BOC Limited. The court also evaluated the necessity of disclosing the safety undertaking details to the employees as part of the ballot process. The Deputy President Hampton concluded that the union had satisfied the notification time requirement and all prerequisites outlined in section 443(1) of the Act. The court further addressed the objections raised by the employer and determined the appropriate closing date for the ballot, ensuring compliance with section 443(3)(c) of the Act.

The Fair Work Commission granted the AMWU's application for a protected action ballot order, with some amendments to the draft order to remove duplications and adopt standard provisions. The ballot was to be conducted by Fair Vote Services Pty Ltd, an approved ballot agent. The Deputy President Hampton set 9 January 2025 as the closing date for voting, which equates to 10 working days from the order's issuance. This date also established the ballot period for the purpose of section 448A(2) of the Act. The matter was subsequently assigned to another Member of the Commission for a compulsory conciliation conference, which would require the attendance of all bargaining representatives in the proposed enterprise agreement. The court issued a separate order in PR782662 to facilitate these proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established