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

[2024] FWC 1896

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

Mayne Pharma International Pty Ltd

(B2024/909)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 19 JULY 2024

Proposed protected action ballot of employees of Mayne Pharma International 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) (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 Mayne Pharma International Pty Ltd (Mayne or Employer).

I note that the United Workers’ Union (UWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)[1] have each made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 18 July 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 Mark Plunkett, State 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 Mayne, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

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 31 July 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR777157.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matters. That Member will issue an Order requiring the attendance of all bargaining representatives for 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] Respectively, B2024/907 and B2024/908.

[2] This is, in effect, 7 days from the anticipated commencement of the ballot and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) has applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning employees of Mayne Pharma International Pty Ltd. The AMWU seeks to conduct a ballot to allow its members to vote on potential protected industrial action. Mayne Pharma International Pty Ltd did not object to the application. Additionally, the United Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia have each separately applied for a protected action ballot order in relation to the same proposed enterprise agreement.

The central legal issue for the Fair Work Commission to decide was whether the AMWU had met the statutory requirements under section 443 of the Act to allow for a ballot to be conducted. This includes confirming that a notification time in relation to the proposed agreement exists and that the union had genuinely attempted to reach an agreement with Mayne Pharma. The Commission also needed to determine the date by which voting should close to ensure compliance with the legislative provisions.

The Deputy President of the Commission, Hampton, determined the matter based on the material submitted, including a declaration from the AMWU's State Organiser, Mark Plunkett, that outlined the union's bargaining efforts and its genuine attempts to reach an agreement with Mayne Pharma. The Commission was satisfied that all conditions under section 443(1) of the Act had been met, including the notification period and the union's good faith efforts in bargaining. Consequently, the Deputy President authorised the conduct of the ballot by Democratic Outcomes Pty Ltd, an approved ballot agent under section 468A of the Act. The Commission set 31 July 2024 as the closing date for voting, which also defines the ballot period for the purposes of section 448A(2) of the Act. The matter will be assigned to another Commission member to conduct the compulsory conciliation conference, and directions will likely be issued to facilitate meaningful negotiations between the parties.

This decision underscores the Commission's role in ensuring that the legal prerequisites for protected industrial action are met and that the ballot process is conducted in accordance with the Fair Work Act. The determination allows the AMWU to proceed with the ballot, while also setting a timeline for the completion of the voting process.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established