"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Campbell Australasia Pty Ltd T/A Campbell's Soups Australia

[2023] FWC 2834

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

Campbell Australasia Pty Ltd T/A Campbell’s Soups Australia

(B2023/1179)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 27 OCTOBER 2023

Proposed protected action ballot of employees of Campbell's Soups Australia.

This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Campbell Australasia Pty Ltd (Campbell or Employer).

On 27 October 2023, the Commission was advised that Campbell, in effect, 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 Andrew Bonello, Industrial Officer, AMWU Victorian branch, 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 Campbell, 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. 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 8 December 2023.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR767692.

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 involved 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, 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) has applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order. The application concerns employees of Campbell Australasia Pty Ltd, trading as Campbell's Soups Australia. The AMWU seeks to conduct a protected action ballot, a process through which employees can be asked to vote on whether to take industrial action in the form of a strike or other protected action. Campbell Australasia Pty Ltd did not object to the application, resulting in the Deputy President proceeding to determine the matter on the basis of the written submissions and evidence provided.

The central legal issue the Commission addressed was whether the AMWU had satisfied the statutory requirements to conduct a protected action ballot. The AMWU had to demonstrate that it had genuinely attempted to reach an agreement with Campbell Australasia Pty Ltd and that all prerequisites under section 443 of the Act had been fulfilled. These include ensuring that the notification period for the proposed agreement had elapsed and that the ballot was conducted in a manner consistent with the Act. The evidence provided by the AMWU, including a declaration by an industrial officer, indicated that all steps had been taken in good faith and that the statutory requirements were met.

The Deputy President was satisfied that the AMWU had met its obligations under the Act. The evidence presented indicated that the union had genuinely attempted to negotiate an agreement with the employer and that the required notification period had passed. The Commission determined that the ballot should be conducted by the Australian Electoral Commission, with the voting period concluding on 8 December 2023. This decision aligns with the statutory requirement for a 30 working day period necessary for the Electoral Commission to conduct a ballot. The Commission also noted that the matter would be assigned to another member for a compulsory conciliation conference under section 448A of the Act.

In light of the above, the Fair Work Commission issued an order approving the protected action ballot. The order specifies the date by which voting must close, establishes the ballot period, and mandates the involvement of all relevant bargaining representatives in a compulsory conciliation conference. This conference aims to facilitate meaningful negotiations between the parties. The decision underscores the importance of adhering to statutory processes when seeking to conduct protected industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established