“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Cockburn Cement Limited Summary

[2024] FWC 1309

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

Cockburn Cement Limited

(B2024/554)

DEPUTY PRESIDENT BEAUMONT

PERTH, 17 MAY 2024

Proposed protected action ballot of employees of Cockburn Cement Limited

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 (Act) for a protected action ballot order in relation to certain employees of Cockburn Cement Limited (CC or Employer).

I note that the Australian Workers’ Union (AWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Transport Workers’ Union (TWU) have each made a separate application for a protected action ballot order in relation to the same proposed agreement.[1]

On 17 May 2024, the Commission was advised that the Employer 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 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 CC, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act 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 6 June 2024.[2] This also establishes the ballot period for the purpose of s 448A(2) of the Act.

An Order has been separately issued in PR775144.

A s 448A compulsory conciliation conference along with the other related matters (B2024/545, B2024/551, B2024/559) will be listed. To the extent that this matter involves any additional bargaining representatives, an Order will issue requiring their 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

Matter determined on the papers.

[1] B2024/545, B2024/551, B2024/559.

[2] This is, in effect, ten (10) working days from the Commencement Date, as sought in the application.

Printed by authority of the Commonwealth Government Printer

PR775146

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU), on behalf of certain employees, applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for an order allowing a ballot for protected action regarding a proposed agreement with Cockburn Cement Limited (CC). The AMWU sought to conduct the ballot to facilitate negotiations for a new enterprise agreement. The application was made without opposition from CC, leading to the decision being rendered on the provided documentation without a hearing. The Deputy President of the Fair Work Commission, Beaumont, determined that the AMWU had met all requirements under the Act, including the notification time for the proposed agreement and the genuine attempt to reach an agreement with CC.

The legal issues before the court involved whether the AMWU had satisfied the prerequisites under section 443(1) of the Act for a protected action ballot and if all procedural requirements had been met, including the appointment of an eligible ballot agent. The court needed to ensure that the AMWU had genuinely attempted to reach an agreement and that all procedural fairness was observed in the proposed ballot. Additionally, the court had to determine an appropriate closing date for the voting period under section 443(3)(c) of the Act.

The Deputy President found that the AMWU had fulfilled all conditions under the Act, including the notification period for the proposed agreement and the requirement of genuine negotiation efforts. The court approved the appointment of Democratic Outcomes Pty Ltd (CiVS) as the ballot agent, as they were authorised under section 468A of the Act. The Deputy President set the closing date for voting at 6 June 2024, effectively ten working days from the commencement date as requested by the AMWU. This decision established the ballot period and was intended to facilitate a s 448A compulsory conciliation conference. The court also noted that any additional bargaining representatives would be required to attend the conference.

The final orders included the authorisation of the AMWU to proceed with the ballot, the appointment of CiVS as the ballot agent, and the setting of the voting closing date. An Order was issued to ensure that the parties, including any additional bargaining representatives, would attend the compulsory conciliation conference ready to engage in meaningful negotiations.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established