"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v McCain Foods (Aust) Pty Ltd

[2025] FWC 1858

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

McCain Foods (Aust) Pty Ltd

(B2025/1065)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 30 JUNE 2025

Proposed protected action ballot of employees of McCain Foods (Aust) Pty Ltd – Ballarat Production.

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 McCain Foods (Aust) Pty Ltd (McCain or Employer). The Commission understands that the parties are bargaining for an enterprise agreement to replace the McCain Foods Pty Ltd Ballarat Production Enterprise Agreement 2022.

On 30 June 2025, 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 Stephen Fodrocy, Industrial Officer, 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 McCain 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 Vero Engagement & Voting Solutions Pty Ltd (Vero Voting). Vero Voting 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 14 July 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.
An Order has been separately issued in PR788731.

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, 10 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) versus McCain Foods (Aust) Pty Ltd, the Fair Work Commission (FWC) was presented with an application by the AMWU under section 437 of the Fair Work Act 2009. The AMWU sought an order for a ballot of certain employees of McCain Foods (Aust) Pty Ltd, specifically those at the Ballarat Production site. The application was made to facilitate a protected action ballot in the context of bargaining for a new enterprise agreement to supersede the existing McCain Foods Pty Ltd Ballarat Production Enterprise Agreement 2022. McCain Foods (Aust) Pty Ltd indicated it did not oppose the application, leading the Commission to decide on the matter without a formal hearing.

The legal issues before the Commission were primarily concerned with whether the AMWU had satisfied the prerequisites set out in section 443 of the Act for a protected action ballot order. These requirements include the AMWU's genuine attempt to reach an agreement with McCain Foods, the appropriateness of the notification period for the proposed agreement, and the compliance with other procedural elements of the Act. The AMWU's declaration, provided by Stephen Fodrocy, an Industrial Officer, outlined the steps taken during the bargaining process and confirmed the union's genuine efforts to reach an agreement. Furthermore, the Commission needed to determine the closing date for the ballot, which was sought by the AMWU as 10 working days from the order's date.

The Deputy President Hampton determined that all conditions under section 443(1) of the Act had been fulfilled, including the AMWU's good faith in bargaining. The Commission approved the proposed closing date of 14 July 2025 for the ballot, aligning with the union's request and setting the ballot period under section 448A(2) of the Act. Vero Engagement & Voting Solutions Pty Ltd was authorised to conduct the ballot as an approved agent under section 468A of the Act. Additionally, the Commission set aside this matter for another member to conduct a compulsory conciliation conference as per section 448A, ensuring that meaningful negotiations would take place.

The final orders established the ballot closing date and authorised Vero Voting to conduct the ballot. Furthermore, the matter was assigned for a conciliation conference, with specific directions expected to be issued to ensure the parties' readiness for productive negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established