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

[2021] FWC 2130

[2021] FWC 2130

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 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
(B2021/264)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 19 APRIL 2021

Proposed protected action ballot of employees of BOC Limited

[1] This is an application lodged on 15 April 2021 by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of BOC Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent initially advised on 16 April 2021 that it did not object to the application but sought an extended notice period under section 443(5) of seven working days.

[3] The Applicant advised on 16 April 2021 that it opposed an extension to the notice period.

[4] Directions for a hearing to determine the notice period question were issued on 16 April 2021. These directions instructed the parties to engage in private discussions in an attempt to resolve the dispute, with further directions for filing of materials if the dispute remained unresolved.

[5] The Respondent confirmed on 19 April 2021 that it no longer wished to be heard in relation to extending the notice period and did not oppose the application.

[6] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[7] On the basis of the material before me, including the statutory declaration of Mr Stuart Gordon of the Applicant lodged 15 April 2021, setting out the steps taken by it in bargaining with the Respondent and confirming 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 the requirements in section 443(1) of the FW Act have been met.

[8] The Applicant sought a ballot period of “20 days from the date this order is made” (emphasis added). Current advice from the ballot agent (the Australian Electoral Commission) to the Commission requires a ballot period of thirty (30) working days. Accordingly the Order in this matter will reflect this protocol.

[9] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[10] An Order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

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