"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Citic Pacific Mining Management Pty Ltd

[2023] FWC 2653

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

CITIC Pacific Mining Management Pty Ltd

(B2023/1090)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 13 OCTOBER 2023

Proposed protected action ballot of employees of Citic Pacific Mining Management Pty Ltd

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

On 13 October 2023, the Commission was advised that CITIC Pacific did not, in effect, 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 Renee Portland, Union Organiser, 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 CITIC Pacific, 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 Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[1] 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 1 November 2023.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR767146.

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] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[2] This period is, in effect, 10 working days from the expected commencement date of the ballot as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by the Australian Manufacturing Workers' Union (AMWU), known as the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, for a protected action ballot order against Citic Pacific Mining Management Pty Ltd. This application was made under section 437 of the Fair Work Act 2009. The AMWU sought to organise a ballot among its members, who are employees of Citic Pacific Mining Management, to potentially authorise industrial action.

The legal issues the court had to address were whether the AMWU had fulfilled the necessary requirements to apply for a ballot and if the proposed ballot agent was suitably approved to conduct the ballot. Specifically, the court needed to determine if the union had genuinely attempted to reach an agreement with the employer and if all the procedural requirements under the Fair Work Act had been satisfied. The court also needed to consider the appropriateness of the ballot period and the designated ballot agent, Democratic Outcomes Pty Ltd T/A CiVS.

The Deputy President of the Fair Work Commission, Hampton, concluded that the AMWU had indeed fulfilled all the necessary conditions to apply for the ballot. The union's declaration, along with other documentation, demonstrated that the union had been genuinely attempting to reach an agreement with Citic Pacific Mining Management. The Deputy President also confirmed that the ballot agent, CiVS, was appropriately authorised to conduct the ballot. The court set the closing date for the ballot as 1 November 2023, establishing a ten-working-day period from the expected commencement date of the ballot. Additionally, the Commission decided to hold a compulsory conciliation conference to facilitate meaningful negotiations between the parties.

As a result, the Fair Work Commission issued an order approving the ballot and scheduled a compulsory conciliation conference to be conducted by another member of the Commission. This conference aimed to ensure that all bargaining representatives were ready to engage in substantive discussions to resolve the ongoing dispute.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established