"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Fenner Dunlop Australia Pty Ltd T/A Fenner Conveyors

[2024] FWC 1643

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

Fenner Dunlop Australia Pty Ltd T/A Fenner Conveyors

(B2024/802)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 24 JUNE 2024

Proposed protected action ballot of employees of Fenner Dunlop Australia Pty Ltd trading as Fenner Conveyors

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 Fenner Dunlop Australia Pty Ltd trading as Fenner Conveyors (Fenner Conveyors or Employer).

On 21 June 2024, 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 Bradley Hattenfels, 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 Fenner Conveyors, 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 5 August 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR776323.

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 for 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, thirty (30) working days from the date of the Order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers’ Union (AMWU), lodged an application under section 437 of the Fair Work Act 2009 with the Fair Work Commission (FWC) seeking a protected action ballot order against Fenner Dunlop Australia Pty Ltd trading as Fenner Conveyors. The AMWU sought the order to facilitate a ballot of certain employees regarding proposed protected actions, which were a result of ongoing industrial negotiations between the union and the employer. Fenner Dunlop did not object to the application, leading the Deputy President to determine the matter on the basis of the submitted documents without a hearing.

The key legal issue for the Commission to decide was whether the AMWU had satisfied the requirements under section 443 of the Fair Work Act to be granted a protected action ballot order. This involved confirming if there was a notification time for the proposed agreement, if the AMWU had genuinely been trying to reach an agreement, and if all procedural requirements had been met. The application was supported by a declaration from Bradley Hattenfels, an Organiser for the AMWU, detailing the union's bargaining efforts and its genuine attempts to reach an agreement with the employer.

The Deputy President, Hampton, found that the AMWU had met all the necessary criteria under section 443 of the Fair Work Act. The evidence provided, including the declaration from Hattenfels, demonstrated the union's ongoing and genuine efforts to negotiate with Fenner Conveyors. The Commission concluded that a notification time existed and that the AMWU had complied with all the procedural requirements for the ballot. Consequently, the Deputy President issued an order granting the ballot order, specifying that voting would close on 5 August 2024, which is effectively 30 working days from the date of the order. The matter was then assigned to another Member of the Commission for a compulsory conciliation conference to be conducted under section 448A of the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established