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

[2023] FWC 1974

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

Infrabuild (Newcastle) Pty Ltd, (Manufacturing) Pty Ltd

(B2023/808)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 8 AUGUST 2023

Proposed protected action ballot of employees of Infrabuild (Newcastle) Pty Ltd & Infrabuild (Manufacturing) 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 Infrabuild (Newcastle) Pty Ltd and Infrabuild (Manufacturing) Pty Ltd (the Respondents).

On 7 August 2023, the Commission was advised that the Respondents 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 Tim Ferguson, AMWU Organiser, setting out the steps taken by the AMWU in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondents, 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, a ballot period of fifteen (15) working days from the date of the Order (8 August 2023) has been approved by the Commission.

An order has been separately issued in PR765009.
A further listing will be sent out from my Chambers scheduling a s.448A conference. I will issue the Order requiring attendance at the conference and directions 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), which applied for a protected action ballot order against Infrabuild (Newcastle) Pty Ltd and Infrabuild (Manufacturing) Pty Ltd. The application was made under section 437 of the Fair Work Act 2009. The respondents did not object to the application, which was subsequently determined by the Fair Work Commission on the papers without a hearing. The Deputy President, Wright, issued the decision in Sydney on 8 August 2023.

The primary legal issue before the court was whether the AMWU had met the requirements under section 443(1) of the Fair Work Act to hold a protected action ballot. This involved determining if the union had genuinely tried to reach an agreement with the respondents and if there was a notification time in relation to the proposed agreement. The court also needed to decide if the requirements for a ballot agent and the ballot period were satisfied.

The court was satisfied that the AMWU had genuinely tried to reach an agreement with the respondents, as evidenced by the declaration of Mr. Tim Ferguson, AMWU Organiser. The court further found that all the requirements under section 443(1) of the Fair Work Act were met, including the notification time for the proposed agreement. The ballot agent, Democratic Outcomes Pty Ltd T/A CiVS (CiVS), had been recently approved under section 468A of the Act and was thus authorised to conduct the ballot. The court approved a ballot period of fifteen working days from the date of the order, 8 August 2023. The Deputy President also issued a separate order in PR765009 and scheduled a section 448A conference to ensure meaningful negotiations between the parties.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established