"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v McPherson's Printing Pty Ltd
[2023] FWC 3175
•4 DECEMBER 2023
| [2023] FWC 3175 |
| 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
McPherson’s Printing Pty Ltd
(B2023/1319)
| DEPUTY PRESIDENT HAMPTON | ADELAIDE, 4 DECEMBER 2023 |
Proposed protected action ballot of employees of McPherson’s Printing 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) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of McPherson’s Printing Pty Ltd (McPherson’s or Employer).
On 1 December 2023, the Commission was advised that McPherson’s objected to the Application. The objection concerned the nature, and clarity, of some of the ballot questions.
In the circumstances, I have decided to conduct a hearing. Having done so, I have now determined that the application should be granted. Written submissions were also provided to Commission by both parties in relation to the Respondent’s objection.
Section 437 of the Act provides as follows:
437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1)A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a)a greenfields agreement; or
(b)a cooperative workplace agreement.
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.
Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
Matters to be specified in application
(3) The application must specify:
(a)the group or groups of employees who are to be balloted; and
(b)the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action; and
(c)the name of the person or entity that the applicant wishes to be the protected action ballot agent for the protected action ballot.
Note: The protected action ballot agent for the ballot must be an eligible protected action ballot agent unless there are exceptional circumstances: see section 444.
(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a)will be covered by the proposed enterprise agreement; and
(b)either:
(i)are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii)are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.
Documents to accompany the application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.
Section 443 of the Act provides:
“443 When the FWC must make a protected action ballot order
(1)The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2)The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3)A protected action ballot order must specify the following:
(a)the name of each applicant for the order;
(b)the group or groups of employees who are to be balloted;
(c)the date by which voting in the protected action ballot closes;
(d)the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action;
(e)the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot;
(f)the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(3A)For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.
(5)If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days or 120 hours (whichever is applicable), the protected action ballot order may specify a longer period of up to 7 working days.
Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.
I observe for completeness that there are other statutory requirements for a PABO to be issued that are not in issue in this matter. Further, most of the matters raised in the provisions above were also not in dispute.
The AMWU must demonstrate that it has met all the above statutory requirements for a PABO to be issued. There is no dispute that the AMWU was entitled to bring the application and a valid application has been made under s.437 of the Act. There is also no dispute that the AMWU has been genuinely trying to reach an agreement with the Respondent.[1] The substantive issue contented by the Employer is whether the ballot questions some of the ballot questions were ‘ambiguous’ or ‘vague’.[2]
The Applicant proposed the following ballot questions:
An unlimited number of stoppages of work for the duration of 10 minutes?
Yes [ ] No [ ]
An unlimited number of stoppages of work for the duration of 1 hour?
Yes [ ] No [ ]
An unlimited number of stoppages of work for the duration of 8 hours?
Yes [ ] No [ ]
An unlimited number of stoppages of work for the duration of 24 hours?
Yes [ ] No [ ]
An unlimited number of stoppages of work for the duration of 48 hours?
Yes [ ] No [ ]
An unlimited number of stoppages of work for the duration of 72 hours?
Yes [ ] No [ ]
An unlimited number of stoppages of work for the duration of one week?
Yes [ ] No [ ]
An unlimited number of indefinite and/ or periodic stoppages on the performance of all work?
Yes [ ] No [ ]
An unlimited number of indefinite and/ or periodic bans on overtime?
Yes [ ] No [ ]
10.An unlimited number of indefinite and/ or periodic bans on specific tasks, duties and operation of machinery?
Yes [ ] No [ ]
The Employer objected to Items 1 to 8 of the proposed order. It submitted that the items do not make it clear to employees that work stoppages of any duration will (or may) result in a loss of wages. The Employer also objected to Item 10 on the basis that in connection with potential safety concerns.
There is no dispute that the questions represent forms of industrial action as required by s.437(3)(b) of the Act[3] and I find that they describe the nature of the proposed action with sufficient clarity for present purposes.[4] Although the questions are not support by the Employer, the objections do not presently concern the approval requirements for a PABO although they may be relevant later for other purposes. I also observe that the Commission does not, in determining a PABO application, approve or disapprove of the particular proposed forms of industrial action beyond consideration of the ballot questions as set out above.[5]
I have considered all of the material before me, including the declaration of Mr Andrew Bonello 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 McPherson’s, 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 18 January 2023.[6] This also establishes the ballot period for the purpose of s.448A(2) of the Act.
An order has been separately issued in PR768883.
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 involved 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
Appearances:
A Bonello for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union.
M Goldsmith, A Peters and N Orr for McPherson’s Printing Pty Ltd.
Hearing details:
2023
December 4
MS Teams Video Hearing.
Final written submissions:
1 and 3 December 2023.
[1] Section 443(b).
[2] Respondent email dated 1 December 2023.
[3] Defined in s.19 of the Act. See also Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union[2017] FWCFB 470.
[4] See National Tertiary Education Industry Union v Curtin University[2022] FWCFB 204.
[5] Ibid.
[6] This is, in effect, 30 working days from the date of effect of the Order. The Applicant initially sought a ballot period of 28 working days. During the Hearing, I advised the parties that 30 working days is the period required by the Australian Electoral Commission to conduct a ballot. No objections were raised by either party.
Printed by authority of the Commonwealth Government Printer
<PR768884>
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