“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Deanmac Emergency Services Pty Ltd

[2013] FWC 1241

[2013] FWC 1241

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
Deanmac Emergency Services Pty Ltd
(B2013/656)

COMMISSIONER LEWIN MELBOURNE, 4 MARCH 2013

Proposed protected action ballot by employees of Deanmac Emergency Services Pty Ltd.

[1] This matter concerns an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) for an order pursuant to s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot to be conducted by the Australian Electoral Commission.

[2] The application was filed on 21 February 2013.

[3] The application is made in respect of employees of Deanmac Emergency Services Pty Ltd (Deanmac) employed at 1-7 Link Way, Laverton North, for whom the AMWU act as bargaining agent for a proposed Enterprise Agreement, between Deanmac and its employees.

[4] The relevant statutory provisions are set out below:

“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 FWA 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.

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.

Note: The protected action ballot agent will be the Australian Electoral Commission unless FWA specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(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) are represented by a bargaining representative who 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.

...

443 When FWA must make a protected action ballot order

(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) FWA is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.”

[5] On 22 February 2013, I requested the AMWU to file grounds in support of the application and that such grounds be served upon Deanmac. This request was complied with on that day.

[6] The grounds filed by the AMWU included a statement of an official of the organisation, Vince Pepi.

[7] Mr Pepi’s statement outlines that the AMWU and Deanmac have been in negotiations for a new Enterprise Agreement since May 2010 and that he has attended meetings with the company since September 2012.

[8] Mr Pepi stated that in the most recent meeting with Deanmac, conducted on conducted on 5 February 2013, Deanmac’s representative indicated that he would provide the AMWU with a revised draft of the proposed Enterprise Agreement. Mr Pepi has stated that Deanmac’s representative has not done this.

[9] I am satisfied that the AMWU is a bargaining agent able to make the application in this matter and that the AMWU is genuinely trying to reach an agreement as required by the Act for the purposes of this application.

[10] At 2:25pm on 22 February 2013, Deanmac’s representative indicated that it did not object to the Fair Work Commission issuing the Order in the form sought by the AMWU.

[11] In these circumstances I must make an Order in the terms sought by the application.

COMMISSIONER

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