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

[2025] FWC 1105

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

MSF Sugar Pty Ltd

(B2025/638)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 22 APRIL 2025

Proposed protected action ballot of employees of MSF Sugar 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 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 MSF Sugar Pty Ltd (MSF Sugar or Employer).

I note that the Australian Workers Union (AWU)[1] and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)[2] have made separate applications for a protected action ballot order in relation to the same proposed enterprise agreement.

On 17 April 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 Ethan Marano, Regional 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 MSF Sugar, 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 8 May 2025.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR786257.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matters. 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] B2025/641.

[2] B2025/644.

[3] 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 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers’ Union (AMWU), versus MSF Sugar Pty Ltd, the Fair Work Commission addressed an application for a protected action ballot order. The AMWU sought this order under section 437 of the Fair Work Act 2009 to conduct a ballot among certain employees of MSF Sugar Pty Ltd regarding a proposed enterprise agreement. The AMWU argued that the requirements for such a ballot were met and sought to proceed without the employer's objection. The Commission was required to determine whether the AMWU had complied with the necessary legal criteria to conduct the ballot, including the notification period and the steps taken in good faith to reach an agreement with the employer.

The legal issues before the Commission included whether the AMWU had satisfied all the statutory requirements to hold a protected action ballot and whether the AMWU had genuinely attempted to negotiate with MSF Sugar in good faith. Additionally, the Commission needed to confirm if the ballot agent, Democratic Outcomes Pty Ltd, was appropriately authorised to conduct the ballot. The decision hinged on whether the AMWU's application met the procedural and substantive requirements set out in the Fair Work Act.

The Deputy President Hampton concluded that the AMWU had fulfilled all the requirements for a protected action ballot, including the notification period and the demonstration of good faith efforts to reach an agreement. The Commission noted that MSF Sugar had not objected to the application and that the ballot agent was authorised under the Act. Consequently, the Commission determined that the AMWU was entitled to proceed with the ballot. The Deputy President set the closing date for voting as 8 May 2025, which effectively allowed for a 10-working-day period from the order date. The decision also noted the assignment of the case for a compulsory conciliation conference, to be conducted by another member of the Commission, to facilitate further negotiations between the parties involved.

In light of the findings, the Fair Work Commission issued an order allowing the AMWU to proceed with the protected action ballot among the specified employees of MSF Sugar Pty Ltd. The Commission also issued a separate order regarding the compulsory conciliation conference and directed the attendance of all relevant bargaining representatives to ensure meaningful negotiations. This decision ensures that the AMWU can proceed with the ballot while also encouraging further dialogue between the parties to reach an agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established