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

[2024] FWC 1086

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

JBS Australia Pty Ltd

(B2024/483)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 26 APRIL 2024

Proposed protected action ballot of employees of JBS 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 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 JBS Australia Pty Ltd (JBS or Employer).

On 24 April 2024, the Commission was advised that the Employer 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 Tim Ferguson, Organiser, 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 JBS, 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 (CiVS). CiVS has 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) of the Act, the Commission has determined that the date by which voting is to close is 10 May 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR774242.

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 for 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] [2023] FWC 1400.

[2] This is, in effect, ten (10) working days from the date of the Order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) made an application to the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 for a protected action ballot order regarding employees of JBS Australia Pty Ltd. The application was made in response to ongoing disputes in the bargaining process for an enterprise agreement. JBS did not oppose the application, leading the Deputy President Hampton to decide on the matter based on the presented documents without the need for a hearing.

The primary legal issue the Commission had to resolve was whether the AMWU had fulfilled the conditions required for a protected action ballot under section 443 of the Fair Work Act. This included verifying that the union had genuinely attempted to reach an agreement with JBS and that all procedural requirements were met. Additionally, the Commission needed to confirm that the proposed ballot agent, Democratic Outcomes Pty Ltd (CiVS), was eligible to conduct the ballot under section 468A of the Act.

The Deputy President Hampton concluded that all requirements for a protected action ballot had been satisfied. The AMWU's declaration by Tim Ferguson demonstrated the union's good faith efforts in bargaining and its ongoing attempts to reach an agreement with JBS. Furthermore, CiVS was approved as a ballot agent, authorised to conduct the ballot. The Deputy President set the closing date for voting at 10 May 2024, ensuring that the ballot period was within the legal timeframe.

The Fair Work Commission issued an order granting the AMWU's application for a protected action ballot. The ballot is to be conducted by CiVS, with voting to conclude on 10 May 2024. Additionally, a separate order was issued to initiate compulsory conciliation under section 448A of the Act, requiring all bargaining representatives to attend a conference aimed at facilitating meaningful negotiations. This decision ensures that the dispute over the enterprise agreement can proceed through the legally mandated processes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established