“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
•19 APRIL 2023
| [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
<PR761216>
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