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

[2023] FWC 2340

[2023] FWC 2340

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

Kinetic Fleet Services Pty Ltd

(B2023/975)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 13 SEPTEMBER 2023

Proposed protected action ballot of employees of Kinetic Fleet Services Pty Ltd 

1. This is an application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ (AMWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Kinetic Fleet Services Pty Ltd (Kinetic Fleet Services).

2. On 13 September 2023, the Commission was advised that Kinetic Fleet Services, in effect, did not object to the application based on an amendment to the proposed Order concerning the extent of notice of industrial action to be provided under s.414 of the Act. This was agreed between the parties.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the declaration of Mr Bill Thomas, AMWU Assistant Secretary, 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 Kinetic Fleet Services , 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.  

2. The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (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.

1. For the purposes of s.443(3)(c) of the Act, and in consultation with the parties, the Commission has determined that the date by which voting is to close is 3 October 2023.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. I am satisfied that there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) of the Act being longer than three working days. Pursuant to s.443(5) the period of notice required under s.414(2)(b) of the Act in each case of industrial action will be five working days.[3]

2. An Order has been separately issued in PR766157.

3. 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 involved 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] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[2] This reflects, in effect, the period set out in the proposed Order.

[3] This has been reflected into the Order in different terms than proposed by the parties, but with the same effect.

Printed by authority of the Commonwealth Government Printer

<PR766156>