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

[2023] FWC 1696

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)

Mars Australia Pty Ltd T/A Mars Wrigley

(B2023/700)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 13 JULY 2023

Proposed protected action ballot of employees of Mars Australia Pty Ltd Trading As Mars Wrigley

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 action ballot order in relation to certain employees of the Respondent, Mars Australia Pty Ltd T/A Mars Wrigley (Mars Australia or Respondent).

On 13 July 2023, the Commission was advised that the Respondent did not object to the Application as amended by agreement between the parties.

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 Mr Fergal Eiffe, AMWU Organiser, setting out the steps taken by the AMWU in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with Mars Australia, 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 Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has recently been approved as an eligible protected action ballot agent under s 468A of the Act[1] and consequently is authorised to conduct the ballot. For the purposes of s.443(3)(c) and s.448A(2) of the Act, a ballot period of 10 working days from the date of the Order (13 July 2023) has been approved by the Commission.

An order has been separately issued in PR764189.

This matter will be assigned to another Member of the Commission to conduct the s.448A conference and this Member will issue the Order requiring attendance 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) applied to the Fair Work Commission (FWC) for a protected action ballot order in relation to certain employees of Mars Australia Pty Ltd T/A Mars Wrigley. The application was made under section 437 of the Fair Work Act 2009 (Act). Mars Australia did not object to the application, leading to a decision being made on the basis of the submitted papers without a hearing. The AMWU had provided a declaration by Mr Fergal Eiffe, an AMWU organiser, detailing the union's bargaining efforts with Mars Australia and asserting that it had been genuinely trying to reach an agreement.

The primary legal issues the FWC needed to address were whether the AMWU had met the requirements for a protected action ballot and whether all necessary conditions under sections 443(1) and 443(3)(c) of the Act had been satisfied. The FWC had to determine if the notification period was appropriate and if Democratic Outcomes Pty Ltd T/A CiVS (CiVS), the appointed ballot agent, was qualified to conduct the ballot. The FWC also needed to approve a ballot period of 10 working days.

The FWC concluded that the AMWU had fulfilled all the requirements for a protected action ballot under the Act. The declaration provided by Mr Fergal Eiffe substantiated the union's genuine attempts to negotiate with Mars Australia, satisfying the notification time condition. Furthermore, CiVS had been approved as an eligible protected action ballot agent under section 468A of the Act, making it authorised to conduct the ballot. The FWC approved a 10 working day ballot period, starting from the date of the order. The FWC also noted that another member would be assigned to conduct the section 448A conference and issue the necessary order for attendance, along with potential directions to ensure meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established