"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Luke Rowe (Managing Director) T/A Rolls Australia Pty Ltd

[2023] FWC 2556

[2023] FWC 2556

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

Luke Rowe (Managing Director) T/A Rolls Australia Pty Ltd

(B2023/1044)

COMMISSIONER CONNOLLY MELBOURNE, 5 OCTOBER 2023

Proposed protected action ballot of employees of Rolls Australia Pty Ltd

1. This is an application by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected ballot order (PABO) in relation to certain employees of Luke Rowe (Managing Director) T/A Rolls Australia Pty Ltd (Rolls Australia or Employer).

1. The application was lodged on 3 October 2023.

1. On Wednesday, 4 October 2023, the matter was allocated to me for determination.

1. The group of employees to be balloted are those who will be covered by the proposed enterprise agreements and are members of and are represented by the bargaining representative who is the applicant for this protected action ballot order, except 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 agreement is proposed as a replacement agreement for the Rolls Printing Pty Ltd Workplace Agreement 2019. The nominal expiry date of which was 30 September 2022. 

1. The proposed agreement is not a greenfields agreement, or a multi-enterprise agreement that is a cooperative workplace agreement.  There has also been a notification time for the proposed agreement and the application and accompanying documentation for each is in order.  The application and proposed order have also been provided by the AMWU to Rolls Australia and the AEC.  This meets the various requirements for the making of a PABO.[1]

1. The application is supported by a statutory declaration of Mr Raoul Wainwright, AMWU Industrial.  The declaration confirms 11 bargaining meetings have occurred between 7 October 2022 and 12 September 2023 and identified that the AMWU has been, and is, genuinely trying to negotiate the terms of the proposed enterprise agreement with the company.  Further, that the AMWU provided its log of claims to the company on or about 7 October 2022. The declaration stated that the parties remain unable to agree on several issues.

1. The AMWU’s application seeks that the protected action ballot close 30 days from the making of order by the Commission. The ballot is to be conducted by the Australian Electoral Commission (AEC).  The AEC is approved as an eligible protected ballot agent under s 468A of the Act and consequently is authorised to conduct the ballot. 

1. On Wednesday 4 October 2023, the Commission was advised that Rolls Australia intended to object to the application and sought that the matter be heard.

1. On Wednesday 4 October 2023, my Chambers issued Directions to all parties in this matter for a Hearing to be convened to consider and determine the application at 2:00pm on Thursday 6 October 2023, to be conducted by Video Conference on Microsoft Teams. Submissions from the Respondent were to be filed by 5:00pm on Wednesday 4 October 2023 and by the Applicant in reply by 12:0pm Thursday 5 October 2023.

1. At the Hearing, Rolls Australia was represented by its Managing Director Mr Luke Rowe, and the AMWU was represented by Mr Raoul Wainwright.

1. The Respondent provided no evidentiary or statutory reason as to why the order should not be made.  In written submissions, however, the Respondent made a number of statements as follows:

“Contrary to the claim by the union applicant, the union has failed to make any concession with respect to items in their log of claims.  The company is not in a financial position to acquiesce to the entitlements and amendments being proposed to the EBA.  The union is aware of this and has been reminded this is the case in each EBA negotiation meeting.  Financial data is available to support this assertion.  Inclusion of the claims the union had made would trigger redundancies across the board if the EBA was approved.  At the moment the company is trying to remain in business due to its financial position.  Escalating industrial action will not resolve the EBA negotiation but may in fact harm the companies’ financial position further. 

Also note that there is an application in progress to terminate the agreement, which has not yet been resolved.  We suggest the Commission is better placed to resolve the bargaining dispute and terminate the agreement and would like to proceed to the hearing.

1. By way of reply, the AMWU submitted that the provisions of s.443 of the Act provide for a mandatory power, which requires the Commission to make a protected action ballot order (PABO) if two conditions are met.  Firstly, at s.443(1)(a) “an application has been made under s437; and secondly, at s.443(1)(b) “the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees to be balloted.”

1. The Applicant then relied on its filed materials and brief written submissions, specifically, the Form F34 and Form F34B Declaration in support of an application for a protected action ballot order made by Mr Raoul Wainwright.

1. The Applicant’s submissions are that the conditions of ss. 443(1)(a) and 443(1)(b) have been met and that the order should be made as sought.

1. The Applicant further submitted that the parties continue to engage in bargaining, attending a 12^th bargaining meeting earlier today, and that the AMWU continues to genuinely try to reach agreement as required by s.443(1)(b). 

1. The Respondent provided additional submissions as to reason why the order should not be made. 

1. There being no reasons as the why the Order should not be made based on the materials filed and submission of the parties, I am satisfied that the full terms of the order provided by the AMWU meet the requirements of the Act and they have been reflected in the Order ultimately made by this Commission.

Conclusions

1. On the basis of all the materials presented before me, including the declaration of Mr Raoul Wainwright, and for the reasons set out above, I am satisfied that the AMWU has been, and is, genuinely trying to reach an agreement with Rolls Australia and that there is a notification time in relation to the proposed agreement and that all of the requirements of s.443(1) of the Act have been met.

1. The ballot is to be conducted by the Australian Electoral Commission. For the purposes of s.443(3)(c) of the Act, and following consultation with the parties, this Commission has determined that the date by which the voting in the protected action ballot is to close is no later than 30 working days from the date of this order. This also establishes the ballot period for the purposes of s.448A(2) of the Act.

1. An order has been separately issued in PR766851.

1. This matter will shortly be listed for a s.448A conference. An order requiring the bargaining representatives’ attendance at the conference will thereafter be issued. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

COMMISSIONER

Appearances (via videoconference):

Mr R Wainwright, on behalf of the Applicant.
Mr L Rowe, as the Respondent.

Hearing details:

2023.
Melbourne.
5 October.

[1] Act ss. 437, 438, 440

Printed by authority of the Commonwealth Government Printer

<PR766850>