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

[2024] FWC 2554

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

Dematic Pty Ltd

(B2024/1220)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 18 SEPTEMBER 2024

Proposed protected action ballot of employees of Dematic Pty Ltd

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 Dematic Pty Ltd (Dematic or Employer).

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

On 17 September 2024, the Commission was advised that the Employer, in effect, 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 Andrew Bonello, Industrial Officer, 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 Dematic, 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) of the Act, the Commission has determined that the date by which voting is to close is 31 October 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 PR779361.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement 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] B2024/1221.

[2] This is, in effect, 30 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) lodged an application under section 437 of the Fair Work Act 2009, seeking a protected action ballot order concerning specific employees of Dematic Pty Ltd. This request was made in the Fair Work Commission, with the aim of conducting a ballot related to a proposed enterprise agreement. Dematic Pty Ltd did not oppose the application, leading the Commission to proceed by reviewing the submitted documents without a hearing. The AMWU provided a declaration from an Industrial Officer detailing their efforts to reach an agreement with Dematic Pty Ltd.

The legal issues before the Commission were whether the AMWU had met the requirements under section 443(1) of the Fair Work Act to conduct a protected action ballot and if the notification time for the proposed agreement was appropriate. The Commission also had to determine the closing date for the ballot voting, as mandated by section 443(3)(c) of the Act. These issues were crucial in ensuring that the ballot process adhered to the legislative framework governing industrial relations in Australia.

The Deputy President found that the AMWU had genuinely attempted to reach an agreement with Dematic Pty Ltd and had fulfilled all requirements for a protected action ballot. The notification period was deemed appropriate, and the Commission set the closing date for voting on the proposed enterprise agreement as 31 October 2024. This date was established to allow a 30 working day period from the issuance of the order, which aligned with the period sought in the application. The Australian Electoral Commission was designated to conduct the ballot. Additionally, a separate order was issued to facilitate a compulsory conciliation conference, overseen by another member of the Commission, to ensure meaningful negotiations between the parties involved.

The Commission issued an order for the AMWU's application, permitting the protected action ballot to proceed. This decision ensures that the AMWU can conduct the ballot within the prescribed timeframe, paving the way for employees to express their views on the proposed enterprise agreement. The Commission also assigned another member to manage the compulsory conciliation conference, reinforcing the commitment to facilitate negotiations and reach an agreement between Dematic Pty Ltd and the unions involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established