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

[2024] FWC 1301

[2024] FWC 1301

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

Bricks Australia Services Pty Limited

(B2024/548)

COMMISSIONER WILSON MELBOURNE, 17 MAY 2024

Proposed protected action ballot of employees of Bricks Australia Services Pty Limited

1. 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 (the Act) for a protected action ballot order in relation to certain employees of Bricks Australia Services Pty Limited (Bricks or the Employer).

1. I note that the Construction, Forestry, Mining and Energy Union (CFMEU) have made a separate application for a protected action ballot order in relation to the same proposed agreement.[1]

1. On 16 May 2024, the Fair Work Commission (the Commission) was advised that while the Employer objected to this application it did not object to the CFMEU Application. Later negotiations and advice from the Commission led to withdrawal of the Employer’s objection to the AMWU’s application coupled with amendment of the proposed protected action ballot questions.

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

1. The Employer’s initial objection was that three questions in the AMWU’s application are objectionable since members of that union do not perform the relevant work. It submitted that the inclusion of the questions may cause confusion and that it needed to raise the subject now, as if it did not it may be criticised later. I communicated to the Employer that neither matter took into account that the Commission is obliged to grant the applications if satisfied of all statutory criteria, and it was my preliminary view they were.

1. In relation to the content of questions, the Full Bench has repeatedly stated that all that is required about questions for inclusion in a ballot is that the questions should describe the industrial action in such a way that employees are capable of responding to them (see John Holland Pty Ltd v AFMEPKIU),[2] and affirmed in NTEU v Curtin University.[3] John Holland and NTEU specifically rejected the proposition that perceived ambiguity in a question constituted a basis to find that an application does not comply with s.437(3)(b).[4]

1. NTEU also distinguished between that which is needed for a determination under s.437 and the specificity that may be required later when protected industrial action is proposed.[5] I consider this reasoning to extend to a situation in which it is argued that a question may cause confusion, as well as claims of ambiguity. Further, NTEU held about the thresholds for orders under s.437:

“[53] In summary, therefore, an application for a protected action ballot order will comply with the requirement in 437(3)(b), and thus will have been “made under section 437” for the purpose of s 443(1)(a), if it specifies a question or questions, capable of being answered “yes” or “no” by the employees participating in the ballot, which propose(s) action of an identified character, kind or sort capable of constituting industrial action within the meaning of s 19(1). A question which meets these requirements can be expressed and understood in ordinary industrial English, and there is no requirement for legalism, technicality or pedantry in the drafting or analysis of such questions. …”

1. The contention that the questions relate to work that is not performed by AMWU members was not supported by any evidence from the Employer and neither was the claim that inclusion of the three questions in the AMWU order may cause confusion. My view was that the contentions appear to be a request for an intervention of the type expressly eschewed by the Full Bench in NTEU.

1. The parties considered the above preliminary views and the AMWU later amended its application to remove two of the disputed questions, leading to the Employer providing consent for the making of a protected action ballot order as amended.

1. On the basis of the material before me, including the declaration of Chloe Simmons, Industrial Officer, 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 Bricks, 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.

1. The ballot is to be conducted by the Australian Electoral Commission (AEC).

1. 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 Monday 1 July 2024.[6] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. An Order has been separately issued in PR775127.

1. This matter will also proceed before me to a s.448A compulsory conciliation conference along with the other related matter (B2024/549) on a date and time to be fixed. To the extent that this matter involves any additional bargaining representatives, an Order an order will be issued requiring their attendance 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.

COMMISSIONER

[1] B2024/549.

[2] [2010] FWAFB 526, [19].

[3] [2022] FWCFB 204, [42].

[4] Ibid, [43], [53].

[5] Ibid, [51].

[6] This is, in effect, thirty (30) working days from the date of the Order, as required by the AEC.

Printed by authority of the Commonwealth Government Printer

<PR775124>