“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v John Beever (Aust) Pty Limited

[2021] FWC 6664

[2021] FWC 6664

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
John Beever (Aust) Pty Limited
(B2021/1192)

COMMISSIONER WILSON MELBOURNE, 22 DECEMBER 2021

Proposed protected action ballot of employees of John Beever (Aust) Pty Limited.

[1] This matter concerns an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) for a protected action ballot order in relation to employees of John Beever (Aust) Pty Limited whose employment is presently covered by the John Beever (Aust) Pty Ltd Metal Engineering On-Site Construction Agreement 2017 – 2020 1(as varied)2 and John Beever (Aust) Pty Ltd Workshop and Site Maintenance Enterprise Agreement July 2017 to June 20213 (as varied) 4 (the Agreements). The nominal expiry date of both of the Agreements is 30 June 2020. The application is made pursuant to Part 3 – 3 of the Fair Work Act 2009 (the Act) and is opposed by John Beever (Aust) Pty Limited.

[2] The application was made pursuant to s.437 of the Act on 3 December 2021.

[3] The AMWU seek to ballot all employees of John Beever (Aust) Pty Limited who will be covered by the proposed enterprise agreement and for whom the AMWU is their bargaining representative, except for an employee who is bound by an individual agreement-based transitional instrument that has not passed its nominal expiry date on the day this ballot order is made, unless such an employee has made a conditional termination of that instrument. The material filed in this application by the AMWU asserts that it is a bargaining representative for the purposes of s.176(1) of the Act.

[4] The AMWU proposes 14 separate questions with a short preamble to which respondent employees will need to answer with a ‘yes’ or ‘no’ response to each question. The questions and preamble proposed to be put are as follows:

“In support of reaching an enterprise agreement with John Beever (Aust) Pty Limited, do you authorise protected industrial action against your employer separately, concurrently and/or consecutively, in the form of:

1. An unlimited number of stoppages of work for the duration of 1 hour?
YES [ ] NO [ ]

2. An unlimited number of stoppages of work for the duration of 2 hours?
YES [ ] NO [ ]

3. An unlimited number of stoppages of work for the duration of 3 hours?
YES [ ] NO [ ]

4. An unlimited number of stoppages of work for the duration of 4 hours?
YES [ ] NO [ ]

5. An unlimited number of stoppages of work for the duration of 6 hours?
YES [ ] NO [ ]

6. An unlimited number of stoppages of work for the duration of 8 hours?
YES [ ] NO [ ]

7. An unlimited number of stoppages of work for the duration of 12 hours?
YES [ ] NO [ ]

8. An unlimited number of stoppages of work for the duration of 24 hours?
YES [ ] NO [ ]

9. An unlimited number of stoppages of work for the duration of 48 hours?
YES [ ] NO [ ]

10. An unlimited number of stoppages of work for the duration of 72 hours?
YES [ ] NO [ ]

11. An unlimited number of stoppages of work for the duration of one week?
YES [ ] NO [ ]

12. An unlimited number of indefinite stoppages of work?
YES [ ] NO [ ]

13. An unlimited number of indefinite or periodic bans on overtime?
YES [ ] NO [ ]

14. An unlimited number of indefinite or periodic bans on call backs?”
YES [ ] NO [ ]

[5] On 7 December 2021, John Beever (Aust) Pty Limited advised the Commission it opposed the application on the basis that the AMWU had not been genuinely trying to reach an agreement with the employer, which is understood to be an argument that the requirement in s.443(1)(b) of the Act to the effect that an applicant for an order of this type has been, and is, genuinely trying to reach an agreement has not been met.

[6] Following a conciliation relating to the progress of bargaining, which is not concluded, and which was convened between the parties so far on 8 and 15 December 2022, the Respondent’s objection to the application was withdrawn.

[7] In considering this application I must apply s.443 of the Act which provides:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[8] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act.

[9] The next matter to which attention must be given is whether or not the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. I am satisfied that this is the case.

[10] Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by AMWU. My order will issue shortly.

COMMISSIONER

Appearances:

B Terzic for the AMWU.

A Ermer for the Respondent.

Hearing details:

2020.
Melbourne, via Microsoft Teams:
8 December.

Printed by authority of the Commonwealth Government Printer

<PR737062>

 1   [2017] FWCA 5030; AE425572; PR596415.

 2   [2021] FWCA 797; AE425572; PR726998.

 3   [2017] FWCA 4873; AE425489; PR596202.

 4   [2021] FWCA 802; AE425489; PR727003.