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

[2017] FWC 6708

[2017] FWC 6708

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
Integrated Packaging Australia Pty Ltd
(B2017/1171)

DEPUTY PRESIDENT CLANCY MELBOURNE, 14 DECEMBER 2017

Proposed protected action ballot of employees of Integrated Packaging Australia Pty Ltd.

[1] On 6 December 2017, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) applied for a protected action ballot order (the Application). In doing so, the AMWU seeks an order that employees of Integrated Packaging Australia Pty Ltd (IPA) who are members of the AMWU and who will be covered by the proposed enterprise agreement intended to replace the Integrated Packaging Australia Pty Ltd Production Employees Chester Hill 2014 Agreement, and for whom the AMWU is a bargaining representative, be balloted to see if they support the taking of protected industrial action.

[2] In the afternoon of 6 December 2017, correspondence was sent by the Fair Work Commission to IPA seeking advice as to whether it opposed the Application. As there had been no response, on 8 December 2017 the Commission left a voicemail and sent a follow up email requesting IPA urgently advise whether it opposed the Application. It was noted in the absence of a response by 2.00pm that day, the matter would be referred to a Member of the Commission for hearing. IPA responded to the email at 11.51am on 8 December 2017, saying “[n]o I don’t oppose the application, however I believe the members of the AMWU on site are reconsidering their position and will vote on that [on] Monday. It may be prudent to delay progressing the matter until the outcome of that vote. Brett Lombe, joint FOC, could be contacted by the AMWU to verify this.” Correspondence was then sent to the AMWU asking it to advise whether it pressed the Application, to which a response was received shortly after, noting that instructions on site would be sought and a response provided as soon as possible.

[3] On 12 December 2017, the Commission sent correspondence to the AMWU which sought a response to the email of 8 December 2017 by 4.00pm that day. The AMWU responded with confirmation it wished to press the Application. An email was then sent to IPA asking it to confirm whether the Application was opposed or not contested.

[4] On 13 December 2017, IPA confirmed via a telephone call with the Commission that it opposed the Application. The file was then allocated to me at approximately 12.45 pm that day.

[5] I conducted a telephone mention at 5.30pm on 13 December 2017. Mr Steven McAleer attended for IPA and Ms Kathryn Presdee and Ms Hannah Smith attended for the AMWU. The outcome of the mention was that the Application was not opposed by IPA, it was agreed the date by which voting was to close in the protected action ballot be no later than 30 working days from the date of the order and that written notice of five working days was to be provided by the AMWU, pursuant to s.443(5) of the Fair Work Act 2009 (the Act).

[6] I am satisfied that:

1. The AMWU is a bargaining representative for the employees 1 and the restriction in s.437(2A) of the Act does not apply;

2. The Application specifies the group of employees to be balloted and the questions to be put to the employees; 2

3. The employer of the employees does not dispute it was given a copy of the Application within 24 hours of the making of the Application and Ms Presdee confirmed during the telephone mention that the AEC was given a copy within 24 hours of the making of the Application; 3

4. The nominal expiry date of the applicable agreement has passed; 4

5. The AMWU has been and is genuinely trying to reach agreement with the employer of the employees who are to be balloted; 5 and

6. On the basis of submissions made during the telephone mention, there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) being extended to five working days. 6

[7] Therefore, on the basis of the material before me and the submissions made by both parties at the telephone mention, I am satisfied the AMWU has fulfilled the statutory prerequisites for a protected action ballot order, and accordingly, I must make a protected action ballot order. An Order will be issued separately to this decision.

DEPUTY PRESIDENT

 1   Fair Work Act 2009 (Cth) s 437(1).

 2   Ibid, s 437(3).

 3   Ibid, s 440.

 4   Ibid, s 438(1).

 5   Ibid, s.443(1) and Form F34B at question 2.1.

 6   Fair Work Act 2009 (Cth) s 443(5).

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