“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Fonterra Australia Pty Ltd

[2023] FWC 492

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

Fonterra Australia Pty Ltd

(B2023/176)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 FEBRUARY 2023

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

On 28 February 2023, my Associate was advised that the Respondent 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 Raoul Wainwright of the Applicant 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.

The Applicant sought that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Vero Engagement & Voting Solutions Pty Ltd (Vero). I am satisfied that Vero is a fit and proper person to conduct the ballot. I am also satisfied that Vero is capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. Vero has agreed to be the protected action ballot agent and is bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

Therefore I appoint Vero as the protected action ballot agent.

An order has been separately issued in PR751251.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers’ Union (AMWU) has applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Fonterra Australia Pty Ltd. The AMWU, the Applicant, is seeking to conduct a ballot of its members who are employed by Fonterra, the Respondent, to ascertain whether they support protected action. The application was made without objection from Fonterra, allowing the Deputy President to determine the matter on the papers without holding a hearing.

The central legal issue before the Deputy President was whether the AMWU had met the statutory requirements for a protected action ballot, specifically the notification period and the good faith bargaining provisions. The AMWU argued that it had genuinely tried to reach an agreement with Fonterra and that all necessary steps had been taken in line with the Fair Work Act. The Deputy President needed to verify the union's assertions and ensure compliance with the Act's provisions for such ballots.

In assessing the application, the Deputy President found that the AMWU had met the notification period requirement and was genuinely attempting to reach an agreement with Fonterra. The Deputy President was satisfied with the union's declaration and the evidence provided, which detailed the bargaining efforts and the attempts to reach an agreement. The Deputy President also considered the suitability of the proposed ballot agent, Vero Engagement & Voting Solutions Pty Ltd, finding it to be a fit and proper person to conduct the ballot, capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. Vero had agreed to comply with the Privacy Act 1998 with respect to the handling of information relating to the ballot. Accordingly, the Deputy President appointed Vero as the protected action ballot agent.

The final orders of the Deputy President included the appointment of Vero as the protected action ballot agent, ensuring that the AMWU could proceed with the ballot of its members in accordance with the Fair Work Act. These orders were issued separately and the union could now move forward with the ballot process as per the provisions 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