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

[2024] FWC 2014

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

FPC Food Plastics (Aust) Pty Ltd

(B2024/959)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 30 JULY 2024

Proposed protected action ballot of employees of FPC Food Plastics (Aust) 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 FPC Food Plastics (Aust) Pty Ltd (FPC or Employer).

On 30 July 2024, the Commission was advised that the Employer, 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 Stephen Fodrocy, 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 FPC, 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 Vero Engagement & Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

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 9 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 PR777669.

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 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] This is, in effect, 7 working days from the making of the Order and was the date sought in the application.

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 for a protected action ballot order against FPC Food Plastics (Aust) Pty Ltd under section 437 of the Fair Work Act 2009. The AMWU sought the order to conduct a ballot of certain employees of FPC in relation to a proposed enterprise agreement. FPC did not object to the application, allowing the Deputy President to decide the matter without a hearing. The Deputy President determined that all requirements for the ballot were met, including the notification period and the engagement of an approved ballot agent, Vero Engagement & Voting Solutions Pty Ltd.

The legal issues before the Deputy President were whether the AMWU had satisfied the prerequisites for a ballot under section 443 of the Act and whether Vero was an approved agent capable of conducting the ballot. The AMWU submitted that it had genuinely attempted to reach an agreement with FPC and provided a declaration from its Industrial Officer outlining the bargaining process. The Deputy President accepted these submissions, confirming that the AMWU had met the statutory requirements and that Vero was duly authorised to conduct the ballot. The Deputy President set the closing date for voting at 9 August 2024, which was also the date for the compulsory conciliation conference to be held under section 448A of the Act.

The Deputy President issued an order approving the ballot and set the closing date for voting as 9 August 2024. Vero was authorised to conduct the ballot on behalf of the AMWU. An additional order was issued to mandate the attendance of all bargaining representatives at the compulsory conciliation conference. This decision ensures that the process for the proposed enterprise agreement continues in accordance with the statutory requirements, with the aim of facilitating meaningful negotiations between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established