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

[2023] FWC 1455

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

Cleanco Queensland Limited

(B2023/603)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 20 JUNE 2023

Proposed protected action ballot of employees of Cleanco at the Kareeya Power Station

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 the Respondent, Cleanco Queensland Limited (Cleanco) at Kareeya Power Station.

On 20 June 2023, the Commission was advised that the Respondent 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 Ms Nicole Frisken, AMWU Regional Organiser, setting out the steps taken by it in bargaining with the Respondent and 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 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) and s.448A(2) of the Act, a ballot period of 30 working days from the date of the Order (20 June 2023) has been established by this Commission.[1]

An order has been separately issued in PR763358.

This matter will be assigned to another Member of the Commission to conduct the s.448A conference and this Member will issue the Order requiring attendance 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] 1This is the minimum period required by the Australian Electoral Commission.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the Australian Manufacturing Workers' Union (AMWU) under section 437 of the Fair Work Act 2009, seeking a protected action ballot order concerning specific employees of Cleanco Queensland Limited at Kareeya Power Station. The AMWU aimed to conduct a ballot in connection with a proposed agreement, asserting that it had been genuinely attempting to reach an agreement with Cleanco. Cleanco did not object to the application, leading the Deputy President Hampton to decide to determine the matter based on the available documentation without holding a hearing.

The legal issues before the Commission involved verifying whether the AMWU had fulfilled the prerequisites for a protected action ballot under the Fair Work Act 2009. Specifically, the Commission had to ascertain if a notification period existed for the proposed agreement and if all the requirements under section 443(1) of the Act were satisfied. This included confirming that the AMWU had genuinely attempted to reach an agreement with Cleanco and if all procedural steps were correctly followed in the bargaining process.

Upon reviewing the declaration of Ms Nicole Frisken, AMWU Regional Organiser, and the other documentation, the Deputy President Hampton concluded that the notification period existed and that the AMWU had genuinely tried to reach an agreement with Cleanco. The Commission was satisfied that all necessary conditions for a protected action ballot had been met, and hence, an order was issued. The ballot was to be conducted by the Australian Electoral Commission over a 30-working-day period starting from the date of the order, 20 June 2023. Additionally, the matter was to be assigned to another member of the Commission to conduct a section 448A conference, and directives would be issued to ensure that the parties participated in meaningful negotiations.

This decision underscores the importance of adhering to the legislative framework set forth by the Fair Work Act 2009 when unions and employers engage in bargaining and propose protected actions. The Commission's determination ensures that the process is conducted fairly and in compliance with the Act, facilitating a transparent and lawful negotiation environment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established