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

[2024] FWC 1579

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

Klondu Group Pty Limited

(B2024/774)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 18 JUNE 2024

Proposed protected action ballot of employees of Klondu Group Pty Limited

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 Klondu Group Pty Limited (Klondu or Employer).

On 17 June 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 Gavin Bubb, 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 it, 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 30 July 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 PR776120.

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 as required by the AEC and sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Australian Manufacturing Workers' Union (AMWU) for a protected action ballot order concerning certain employees of Klondu Group Pty Limited. The AMWU sought the order under section 437 of the Fair Work Act 2009 to facilitate a ballot for proposed industrial action. The employer, Klondu Group, did not object to the application, and the matter was decided on the papers without a hearing. The Deputy President of the Commission, Hampton, examined the declaration by Gavin Bubb, an AMWU Organiser, which detailed the union's bargaining efforts and its genuine attempts to reach an agreement with the employer.

The primary legal issue before the Court was whether the AMWU had satisfied the conditions stipulated in section 443(1) of the Fair Work Act for a protected action ballot. This required the Court to consider if the AMWU had fulfilled its obligations under the Act, including providing notice of the proposed agreement and demonstrating its ongoing efforts to negotiate in good faith. The Court also had to determine an appropriate closing date for the ballot, ensuring compliance with section 443(3)(c) of the Act and facilitating the ballot period for section 448A(2).

The Deputy President concluded that the AMWU had met all the necessary requirements for a protected action ballot, including demonstrating a notification time in relation to the proposed agreement. The Court was satisfied that the AMWU had genuinely attempted to reach an agreement with the employer. Consequently, the Deputy President issued an order permitting the AMWU to conduct the ballot through the Australian Electoral Commission, setting 30 July 2024 as the closing date for voting. The case will proceed to a compulsory conciliation conference under section 448A, where further negotiations will be conducted to resolve the ongoing dispute between the AMWU and Klondu Group.

This decision ensures that the AMWU can proceed with the protected action ballot and provides a structured path forward for the employer and the union to engage in meaningful negotiations. The final orders include the conduct of the ballot by the AEC and the scheduling of a compulsory conciliation conference to facilitate further discussions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established