“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Mars Australia Pty Ltd Summary

[2023] FWC 2574

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v

Mars Australia Pty Ltd

(B2023/1056)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 5 OCTOBER 2023

Proposed protected action ballot of employees of Mars 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 Mars Australia Pty Ltd (Mars or Employer).

I note that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) have made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 6 October 2023, the Commission was advised, in effect, that Mars 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 Mr Raoul Wainwright on behalf of the AMWU, 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 Mars, 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. 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 17 November 2023.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act and this aligns with the ballot period in the related matter.

An order has been separately issued in PR766906.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter (B2023/1058). To the extent that this matter involves any additional bargaining representatives, the Commission will also issue the Order requiring their 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] This is, in effect, 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers’ Union (AMWU) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for an order allowing a ballot of certain employees of Mars Australia Pty Ltd (Mars). The AMWU sought this in relation to a proposed enterprise agreement. Mars did not object to the application, and the Commission proceeded to determine the matter based on the provided documentation. The AMWU had to demonstrate that it had genuinely tried to reach an agreement with Mars and that the requirements of section 443(1) of the Act were met. The decision addressed the procedural aspects of the ballot, including the timing and administration by the Australian Electoral Commission.

The legal issues before the Commission were whether the AMWU had fulfilled its obligations under the Act, particularly in relation to bargaining and the notification period, and whether the conditions for a protected action ballot were satisfied. The AMWU had to show that it had been genuinely attempting to negotiate with Mars and that the requirements for a ballot under section 443(1) of the Act were met. The Commission needed to confirm that the notification period for the proposed agreement was appropriate and that all procedural requirements were adhered to.

The Commission found that the AMWU had genuinely tried to reach an agreement with Mars and that the notification period was appropriate. The AMWU had complied with all the requirements of section 443(1) of the Act. Consequently, the Deputy President Hampton issued an order allowing the AMWU to conduct a ballot of Mars employees for the proposed enterprise agreement. The ballot was to be administered by the Australian Electoral Commission, with voting to close on 17 November 2023. The decision also included provisions for a compulsory conciliation conference to be held to facilitate negotiations between the parties.

The Commission issued an order permitting the AMWU to conduct the ballot for the proposed enterprise agreement, with voting to close on 17 November 2023. The decision also mandated a compulsory conciliation conference to be conducted by another member of the Commission. The Commission would issue further orders to ensure that all bargaining representatives attended the conference and were prepared to engage in meaningful negotiations. This order aligns with the related matter and ensures that the parties are ready to negotiate effectively.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established