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

[2023] FWC 926

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

Cowan Manufacturing Pty. Limited

(B2023/334)

COMMISSIONER P RYAN

SYDNEY, 19 APRIL 2023

Proposed protected action ballot of employees of Cowan Manufacturing Pty. Limited

This decision concerns an application made by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) pursuant to s.437 of the Fair Work Act 2009 (Cth) (FW Act) for a protected action ballot order in relation to certain employees of Cowan Manufacturing Pty Limited (Respondent).

In accordance with Rule 31 of the Fair Work Commission Rules 2013, the application was accompanied by a Form F34B Declaration of Mr Tim Ferguson, AMWU Organiser, and a draft order.

The Respondent objected to the application.

On 17 April 2023 and the matter was allocated my Chambers and following a conference with the parties later that day, the matter was listed for hearing on 19 April 2023 and directions issued for the parties to file any evidence and submissions in support of, or in opposition to, the making of the order.

On 18 April 2023, the Respondent advised my Chambers that it no longer objected to the making of the order.

In response to the Respondent withdrawing its objection, my Chambers advised the parties that directions and hearing date would be vacated and that I would proceed to determine the application on the materials filed.

Section 437 of the FW Act provides as follows:

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a multi‑enterprise agreement.

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Matters to be specified in application
(3) The application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to
(c) be balloted, including the nature of the proposed industrial action.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.
(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) either:
(i)are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii)are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.

Section 443 of the FW Act provides as follows:

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a multi‑enterprise agreement.

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Matters to be specified in application

(3) The application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.
(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) either:
(i)are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii)are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

On the basis of the material before me, including the statutory declaration of Tim Ferguson of the AMWU declared on 12 April 2023, 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 the requirements in s.443(1) of the FW Act have been met.

It follows that a protected action ballot order must be made pursuant to s.443 of the FW Act.

An order [PR761217] will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission was presented with a case brought by the Australian Manufacturing Workers' Union (AMWU) against Cowan Manufacturing Pty. Limited. The AMWU sought a protected action ballot order in accordance with section 437 of the Fair Work Act 2009 (Cth) (FW Act), to determine whether employees wished to engage in specific protected industrial action concerning a proposed enterprise agreement. The Respondent initially objected to the application but later withdrew its objection, leading to the Commission proceeding to determine the application based on the materials submitted. The key legal issues revolved around whether the AMWU met the criteria for a protected action ballot order under the FW Act, including the necessity of a notification time and the adherence to the procedural requirements outlined in section 443.

The Commission reviewed the evidence, particularly the statutory declaration by Tim Ferguson of the AMWU, which outlined the union's efforts to reach an agreement with the Respondent and affirmed the existence of a notification time. The Commission found that the AMWU had satisfied the prerequisites for a protected action ballot order as stipulated in section 443(1) of the FW Act. Given that the statutory conditions were met and the Respondent had withdrawn its objection, the Commission concluded that it was appropriate to grant the order. This decision was made in the context of ensuring that employees had the opportunity to express their views on the proposed industrial action through a ballot, as mandated by the Fair Work Act.

In light of the findings, the Fair Work Commission issued an order pursuant to section 443 of the FW Act, permitting the AMWU to conduct a protected action ballot among the employees of Cowan Manufacturing Pty. Limited. The decision underscored the importance of following the legislative framework designed to protect the rights of employees and employers alike in the context of industrial relations. The order, which will be detailed in a separate document, formalizes the Commission's approval of the ballot process as requested by the AMWU.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established