"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Joy Global Australia Pty Ltd T/A Komatsu Mining Corp

[2024] FWC 2621

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

Joy Global Australia Pty Ltd T/A Komatsu Mining Corp

(B2024/1243)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 23 SEPTEMBER 2024

Proposed protected action ballot of employees of Joy Global 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 Joy Global Australia Pty Ltd trading as Komatsu Mining Corp (Joy Global or Employer).

On 23 September 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 John Stewart, 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 Joy Global, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act 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 8 October 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 PR779524.

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, 10 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 has determined an application by the Australian Manufacturing Workers' Union (AMWU) under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Joy Global Australia Pty Ltd, trading as Komatsu Mining Corp. The AMWU, represented by Industrial Officer John Stewart, applied for the ballot to proceed with a proposed enterprise agreement. Joy Global did not object to the application, leading the Deputy President to decide the matter on the submitted papers without a hearing.

The legal issues before the court were whether the AMWU had genuinely attempted to reach an agreement with Joy Global, if a notification period existed for the proposed agreement, and whether all requirements under section 443 of the Act had been fulfilled. The Deputy President found that the AMWU had indeed been genuinely trying to reach an agreement, as evidenced by Stewart's declaration, and that a notification period existed. Additionally, all conditions under section 443(1) of the Act had been met.

Based on the evidence, the Deputy President determined that the ballot would be conducted by Democratic Outcomes Pty Ltd (CiVS), an approved agent under section 468A of the Act. The voting period was set to close on 8 October 2024, which aligns with the 10 working days from the making of the Order. This date also serves as the ballot period for the purposes of section 448A(2) of the Act. A separate order has been issued, and the matter will be assigned to another Commissioner for a compulsory conciliation conference. This conference will require the attendance of all bargaining representatives, and directions will likely be issued to ensure meaningful negotiations.

The final orders included the approval of the ballot by CiVS and the setting of the voting period closing date. The matter was also assigned for a compulsory conciliation conference, ensuring that all bargaining representatives would attend to negotiate the proposed enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established