“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v McConnell Dowell Constructors (Aust) Pty Ltd T/As McConnell Dowell

[2024] FWC 2136

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

McConnell Dowell Constructors (Aust) Pty Ltd T/As McConnell Dowell

(B2024/1023)

DEPUTY PRESIDENT HAMPTON

MELBOURNE, 13 AUGUST 2024

Proposed protected action ballot of employees of McConnell Dowell Constructors (Aust) Pty Ltd T/A McConnell Dowell.

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 McConnell Dowell Constructors (Aust) Pty Ltd (MDC or Employer).

I note that the Construction, Forestry and Maritime Employees Union (CFMEU)[1] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 13 August 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 Daniel William Lacey, 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 MDC, 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 27 August 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

The structure of the draft order has been amended to reflect the Fair Work Commission’s standard template.

An Order has been separately issued in PR778245.

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. 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] B2024/1013.

[2] 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

The Australian Manufacturing Workers' Union (AMWU) filed an application under section 437 of the Fair Work Act 2009, seeking a protected action ballot order concerning certain employees of McConnell Dowell Constructors (Aust) Pty Ltd (MDC). This application followed a separate application made by the Construction, Forestry and Maritime Employees Union (CFMEU) for a similar ballot regarding the same proposed enterprise agreement. The AMWU, represented by Daniel William Lacey, an Organiser, argued that it had been genuinely attempting to reach an agreement with MDC. MDC did not object to the AMWU's application, leading to the decision to determine the matter on the available papers without a hearing.

The key legal issue before the Fair Work Commission was whether all statutory requirements for a protected action ballot had been met, particularly under sections 443 and 443(1) of the Fair Work Act. This involved verifying that the AMWU had indeed engaged in genuine bargaining efforts and met the notification time requirements. Additionally, the Commission needed to confirm that Democratic Outcomes Pty Ltd (CiVS), the proposed ballot agent, was approved and authorised to conduct the ballot under section 468A of the Act.

In evaluating the application, Deputy President Hampton concluded that the AMWU had satisfied all statutory requirements. The evidence presented by Lacey demonstrated genuine bargaining efforts, and the Commission was satisfied that the notification period had been met. Consequently, the Commission granted the AMWU's application for a ballot order, specifying that voting would close on 27 August 2024. This date also set the ballot period for the purposes of section 448A(2) of the Act. The structure of the draft order was amended to align with the Fair Work Commission’s standard template. A separate order was issued, and the matter was assigned to another member for the compulsory conciliation conference, with directions to be issued to ensure meaningful negotiations between the parties.

The final order granted the AMWU's application for a protected action ballot order, with voting to close on 27 August 2024. This order was designed to ensure that all statutory requirements were met and that the ballot process would proceed in accordance with the Fair Work Act. The matter was subsequently assigned to another member of the Commission for the compulsory conciliation conference, with directions to facilitate meaningful negotiations between the parties involved in the proposed enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established