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

[2024] FWC 2851

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

IVE Employment (Victoria) Pty Ltd

(B2024/1335)

DEPUTY PRESIDENT HAMPTON

MELBOURNE, 15 OCTOBER 2024

Proposed protected action ballot of employees of IVE Employment (Victoria) 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 IVE Employment (Victoria) Pty Ltd (IVE or Employer).

On 14 October 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 Andrew Bonello, 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 IVE, 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 27 November 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 PR780200.

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, 30 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide on an application by the Australian Manufacturing Workers' Union (AMWU) for a ballot order regarding certain employees of IVE Employment (Victoria) Pty Ltd. The AMWU sought a protected action ballot to allow its members to vote on proposed industrial action. The employer, IVE, did not oppose the application, and thus the matter was decided based on the documents submitted. The AMWU had to demonstrate that it had genuinely attempted to negotiate with the employer and that a notification period for the proposed agreement was in place. The Commission was satisfied with the evidence provided by the AMWU and determined that all requirements under the Fair Work Act 2009 were met.

The central legal issue before the Commission was whether the AMWU had fulfilled the conditions necessary to apply for a ballot order under section 437 of the Fair Work Act 2009. This required verifying that the union had made genuine efforts to reach an agreement with the employer and that it had provided the appropriate notification period. The Commission also needed to confirm that all procedural requirements under the Act were satisfied before granting the ballot order. Given that IVE did not contest the application, the focus was on assessing the sufficiency of the AMWU's evidence and whether the statutory criteria were met.

After reviewing the documentation, Deputy President Hampton concluded that the AMWU had genuinely tried to reach an agreement with IVE and that a notification period had been observed. The Commission found that all prerequisites for a ballot order were met under section 443(1) of the Fair Work Act 2009. Consequently, the application was approved, and the Commission set the closing date for the voting period as 27 November 2024, which corresponds to 30 working days from the date of the order. This decision also triggered the requirement for a compulsory conciliation conference under section 448A of the Act, to be managed by another member of the Commission. The AMWU was granted the authority to conduct the ballot through the Australian Electoral Commission.

The Commission issued an order granting the AMWU's application for a ballot order, with the voting period set to close on 27 November 2024. The decision also mandated the holding of a compulsory conciliation conference to facilitate negotiations between the AMWU and IVE, ensuring that both parties are prepared to engage in meaningful discussions. This order is part of a broader process intended to resolve the dispute through constructive dialogue and to avoid potential industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established