"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v EDI Rail PPP Maintenance Pty Ltd

[2023] FWC 1870

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

EDI Rail PPP Maintenance Pty Ltd

(B2023/757)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 28 JULY 2023

Proposed protected action ballot of employees of EDI Rail PPP Maintenance 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) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of EDI Rail PPP Maintenance Pty Ltd (EDI or Employer).

On 28 July 2023, the Commission was advised that EDI, 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 Mr Nathan Everson, AMWU Organiser, 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 EDI, 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 Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has recently been approved as an eligible protected action ballot agent under s 468A of the Act[1] and consequently is authorised to conduct the ballot. For the purposes of s.443(3)(c) and s.448A(2) of the Act, and following consultation with the parties, a ballot period of thirteen (13) working days from the date of the Order (28 July 2023) has been determined by the Commission. I observe that this is, in effect, the same ballot period proposed[2] in the draft Order.

The group of employees to be balloted as originally set out in the draft order was also, following consultation, modified in the final Order to confirm the intention of the parties.

An Order has been separately issued in PR764686.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference and this Member will issue the Order requiring attendance 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] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[2] Ten (10) working days from the commencement date of the ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought a protected action ballot order from the Fair Work Commission (FWC) against EDI Rail PPP Maintenance Pty Ltd (EDI). The AMWU aimed to conduct a ballot of certain EDI employees regarding potential protected action. EDI did not object to the application, prompting the FWC to decide the matter on the submitted documents without a hearing. The FWC was satisfied with the AMWU's declaration, stating that the union had genuinely attempted to reach an agreement with EDI and that all requirements under section 443(1) of the Fair Work Act 2009 had been met.

The FWC addressed the legal issues concerning the AMWU's application for a protected action ballot order. The key issue was whether the AMWU had genuinely attempted to negotiate with EDI, as required by section 443(1) of the Fair Work Act 2009. The FWC accepted the AMWU's declaration that it had been genuinely trying to reach an agreement with EDI, fulfilling the statutory requirement. Additionally, the FWC determined the appropriate ballot period and the authorised ballot agent, considering the submissions from both parties and the recent approval of Democratic Outcomes Pty Ltd T/A CiVS as a protected action ballot agent.

In its decision, the FWC granted the AMWU's application for a protected action ballot order. The Commission set a ballot period of thirteen working days from the date of the order, 28 July 2023. The ballot would be conducted by CiVS, as authorised under section 468A of the Fair Work Act 2009. The FWC also adjusted the group of employees to be balloted to reflect the parties' intentions accurately. Another FWC member would oversee the compulsory conciliation conference, and directions would be issued to ensure meaningful negotiations. The FWC's decision facilitated the process for the AMWU to proceed with the ballot while encouraging continued negotiation between the AMWU and EDI.

The final orders issued by the FWC included the authorisation of CiVS to conduct the ballot, the determination of the ballot period, and the modification of the group of employees to be balloted. The FWC also assigned another member to conduct the compulsory conciliation conference and issued directions to ensure the parties attended prepared for meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established