"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Metro Tasmania Pty Ltd T/A Metro

[2023] FWC 1922

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

Metro Tasmania Pty Ltd T/A Metro

(B2023/792)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 4 AUGUST 2023

Proposed protected action ballot of employees of Metro Tasmania 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 Metro Tasmania Pty Ltd T/A Metro (Metro or Employer).

On 3 August 2023, the Commission was advised that Metro, in effect, did not object to the Application as subsequently amended.[1]

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 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 Metro, 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) and s.448A(2) of the Act, a ballot period of 30 working days from the date of the Order (4 August 2023) has been determined by this Commission.

Following consultation, clause 5 of the draft Order was amended to include a preamble to the ballot questions. In addition, the Commission also sought clarification from the parties about another proposed ballot question and the Order as issued deals with that aspect.

An order has been separately issued in PR764848.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. To the extent that this matter involves additional bargaining representatives for the proposed enterprise agreement, the Commission will issue a further Order requiring their attendance 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] The Respondent had requested amendments to Clause 5 of the draft Order and Question 2.1 of the AMWU’s F34. The

A Printed by authority of the Commonwealth Government Printer

MWU subsequently provided an amended draft Order and F34 to reflect the requested amendments.

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 for certain employees of Metro Tasmania Pty Ltd T/A Metro. The union aimed to conduct a ballot to determine whether its members would support protected industrial action. The application was made without objection from the employer, Metro Tasmania Pty Ltd, leading the Fair Work Commission to decide the matter on the papers without a hearing.

The primary legal issue before the Commission was whether the AMWU had satisfied all the requirements under section 443(1) of the Act to proceed with the ballot. This included verifying that there was a notification period for the proposed agreement and that the union had genuinely attempted to reach an agreement with the employer. The Commission considered the union's declaration and the steps taken in the bargaining process to ensure all requirements were met.

The Deputy President found that the union had genuinely tried to reach an agreement with the employer and that all conditions under section 443(1) of the Act were satisfied. The Commission determined a ballot period of 30 working days from the date of the order. The Australian Electoral Commission would conduct the ballot, and the matter would be assigned to another member of the Commission for a compulsory conciliation conference. The Commission also addressed amendments to the draft order and ballot questions to ensure clarity and fairness.

The Fair Work Commission granted the application, issuing an order for a 30-working-day ballot period. The order specified the ballot's conduct by the Australian Electoral Commission and included a preamble to the ballot questions. Additionally, the Commission directed the parties to attend a compulsory conciliation conference and issued directions to ensure meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established