"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Diver Metal Products Pty Limited T/A Diver Consolidated Industries

[2025] FWC 3156

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

Diver Metal Products Pty Limited T/A Diver Consolidated Industries

(B2025/1610)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 22 OCTOBER 2025

Proposed protected action ballot of employees of Diver Metal Products Pty Ltd T/A Diver Consolidated Industries – AEC ballot

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 Diver Metal Products Pty Limited T/A Diver Consolidated Industries (Diver or Employer).

On 21 October 2025, 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 Chloe Simmons, 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 Diver, 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.

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 4 December 2025[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR792845.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. 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] 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 Fair Work Commission was presented with an application by the Australian Manufacturing Workers' Union (AMWU) for a protected action ballot order under section 437 of the Fair Work Act 2009, concerning certain employees of Diver Metal Products Pty Limited T/A Diver Consolidated Industries. Diver Metal Products Pty Limited, referred to as Diver, indicated that it did not object to the application. As such, the Deputy President Wright decided to adjudicate the matter on the submitted documentation without the need for a hearing. The primary legal issues revolved around whether the AMWU had fulfilled the necessary conditions for seeking a protected action ballot, including ensuring there was a notification period for the proposed agreement and that all requirements under section 443(1) of the Act were met.

The court considered the declaration of Chloe Simmons, an Industrial Officer for the AMWU, which outlined the union's efforts in negotiating with Diver. Based on the evidence provided, the Deputy President Wright was satisfied that the AMWU had been genuinely attempting to reach an agreement with Diver. This satisfaction was grounded on the fulfillment of all requirements, including the notification period stipulated under section 443(3)(c) of the Act. Consequently, the Commission determined that voting for the ballot would close on 4 December 2025, which also marked the end of the ballot period under section 448A(2) of the Act. The decision to set the closing date for voting was in line with the period sought by the AMWU in their application.

In light of this decision, the Fair Work Commission issued a separate Order in PR792845, assigning another Member of the Commission to conduct a compulsory conciliation conference. This Member was tasked with requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference, with likely accompanying directions to ensure meaningful negotiations. The Deputy President Wright concluded the decision by issuing the necessary Order and noting the assignment to another Commission member for the conciliation conference, which aimed to facilitate effective negotiations between the AMWU and Diver.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established