"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Metal Manufactures Limited T/A MM Kembla

[2023] FWC 2678

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)

Metal Manufactures Limited T/A MM Kembla

(B2023/1092)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 16 OCTOBER 2023

Proposed protected action ballot of employees of Metal Manufactures Limited Trading as MM Kembla

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 Metal Manufactures Limited T/A MM Kembla (MM Kembla or Employer).
I observe that there is a related application by the United Workers’ Union (UWU) in B2023/1079. Both applications relate to the same proposed enterprise agreement.
On 16 October 2023, the Commission was advised that MM Kembla did not, in effect, 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 Gavin Bubb, 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 MM Kembla, 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 27 November 2023. [1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.
An Order has been separately issued in PR767237.
This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference in conjunction with the related matter. To the extent that this involves additional bargaining representatives, 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

[1] This is 30 working days from the date of the Order, which is the minimum period required by the Australian Electoral Commission.

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 a protected action ballot order in relation to certain employees of Metal Manufactures Limited T/A MM Kembla (MM Kembla). The application was made to permit a ballot of employees regarding a proposed enterprise agreement. The AMWU argued that it had genuinely attempted to negotiate with MM Kembla but had been unable to reach an agreement. MM Kembla did not object to the application, leading the Deputy President to determine the matter on the papers without a hearing.

The primary legal issue before the Deputy President was whether the AMWU had satisfied the requirements under section 443(1) of the Act for a protected action ballot order. This involved verifying whether a notification period for the proposed agreement existed and whether the AMWU had genuinely attempted to reach an agreement with MM Kembla. The Deputy President reviewed the declaration of Mr Gavin Bubb, Organiser of the AMWU, which outlined the bargaining efforts and concluded that all statutory requirements had been met. The Deputy President also determined the closing date for voting in the ballot, ensuring it complied with the minimum period required by the Australian Electoral Commission.

The Deputy President granted the AMWU's application and issued an order for the ballot to be conducted by the Australian Electoral Commission, with voting to close on 27 November 2023. This date was set to ensure it met the minimum period required by the Commission. The Deputy President also noted that the matter would be assigned to another member for a compulsory conciliation conference, which would involve additional bargaining representatives. The Deputy President indicated that directions would be issued to ensure the parties were prepared for meaningful negotiations during the conference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established