"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Dow Performance Materials (Australia) Pty Ltd Summary

[2025] FWC 2256

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

Dow Performance Materials (Australia) Pty Ltd

(B2025/1228)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 1 AUGUST 2025

Proposed protected action ballot of employees of Dow Performance Materials (Australia) 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 Dow Performance Materials (Australia) Pty Ltd (Dow Performance or Employer).

I note that the Construction, Forestry and Maritime Employees Union (CFMEU) has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.[1]

On 1 August 2025 the Commission was advised that the Employer 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 Dow Performance, 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 (AEC).

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

An Order has been separately issued in PR790286.

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/s. To the extent that this matter involves any additional bargaining representatives, that Member will issue an Order requiring their attendance 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] B2025/1216

[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 Fair Work Commission has heard an application by the Australian Manufacturing Workers' Union (AMWU) for a protected action ballot order in relation to employees of Dow Performance Materials (Australia) Pty Ltd. The AMWU seeks to conduct a ballot to authorize industrial action in pursuit of a proposed enterprise agreement. The employer, Dow Performance, did not object to the application. The AMWU submitted that it had been genuinely trying to reach an agreement with the employer and that all requirements under the Fair Work Act 2009 had been met for a notification time and a ballot order.

The legal issues before the Commission involved whether the AMWU had fulfilled the conditions necessary to hold a ballot under section 437 of the Fair Work Act 2009. Specifically, the Commission had to determine if there was a notification time, if the AMWU had genuinely attempted to negotiate with the employer, and if all the statutory requirements for holding a ballot were satisfied. The Commission also needed to set a closing date for the ballot period, in line with the statutory provisions and the application.

In its decision, the Commission found that the AMWU had indeed been genuinely attempting to negotiate with Dow Performance and that all the statutory requirements for a notification time and a ballot order had been met. The Deputy President was satisfied with the evidence presented, including a declaration from an AMWU Industrial Officer, that the union had followed proper procedures. The Commission set the closing date for the ballot as 12 September 2025, which is 30 working days from the issuance of the order. This date was also consistent with the period sought in the AMWU's application. The Commission issued a separate order for the ballot to be conducted by the Australian Electoral Commission and assigned the matter to another member to conduct the compulsory conciliation conference.

The Fair Work Commission has thus granted the AMWU's application for a protected action ballot order. The ballot will proceed as planned, with voting to close on 12 September 2025. The Commission's decision ensures that the legal requirements are met and that the process for industrial action follows the appropriate statutory framework.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Dow Performance Materials (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established