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

[2023] FWC 780

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

EnergyAustralia NSW Pty Ltd

(B2023/276)

VICE PRESIDENT CATANZARITI

SYDNEY, 31 MARCH 2023

Proposed protected action ballot of employees of EnergyAustralia NSW 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) (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of EnergyAustralia NSW Pty Ltd (Respondent).

On 30 March 2023, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Raymund Shortill of the Applicant declared on 23 March 2023, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An Order has been separately issued in PR760769.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU), also known as the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, sought a protected action ballot order from the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 in relation to certain employees of EnergyAustralia NSW Pty Ltd. The AMWU sought the order to facilitate a proposed protected action ballot, which would allow its members to take industrial action if negotiations with EnergyAustralia NSW Pty Ltd failed. The Respondent, EnergyAustralia NSW Pty Ltd, did not oppose the application, leading the FWC to determine the matter on the papers without holding a hearing.

The primary legal issue the FWC had to decide was whether the AMWU had genuinely tried to reach agreement with EnergyAustralia NSW Pty Ltd. Additionally, the FWC needed to consider whether the notification time for the proposed agreement was in place and if the requirements in section 443(1) of the Act had been met. The FWC's assessment relied on the statutory declaration provided by Raymund Shortill of the AMWU, which outlined the steps taken in bargaining with the Respondent.

After reviewing the material presented, including the statutory declaration, the FWC found that the AMWU had genuinely tried to reach agreement with EnergyAustralia NSW Pty Ltd. The Commission was satisfied that the notification time for the proposed agreement was in place and that the requirements in section 443(1) of the Act had been met. Consequently, the FWC granted the AMWU's application for a protected action ballot order.

The FWC issued an Order in PR760769, permitting the AMWU to proceed with the proposed protected action ballot in accordance with the provisions of the Fair Work Act 2009. This decision allows the AMWU to take industrial action if negotiations with EnergyAustralia NSW Pty Ltd do not result in a satisfactory agreement, as long as the ballot is conducted in accordance with the Act's requirements.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established