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

[2025] FWC 265

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

Nestle Australia Ltd

(B2025/189)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 30 JANUARY 2025

Proposed protected action ballot of employees of Nestle Australia 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 Nestle Australia Ltd (Nestle or Employer).

On 29 January 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 Chloe Simmons, Industrial Officer, 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 Nestle, 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 Vero Engagement & Voting Solutions Pty Ltd (Vero Voting). Vero Voting 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 14 February 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR783790.

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 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, in effect, 11 working days from the making of the Order and was the specific date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers' Union (AMWU), for a protected action ballot order in relation to certain employees of Nestle Australia Ltd. This application was made under section 437 of the Fair Work Act 2009. The AMWU sought to conduct a ballot for protected industrial action due to ongoing disputes in their negotiations with Nestle over a proposed enterprise agreement. Nestle did not object to the application, thus the matter was determined on the papers without a formal hearing.

The key legal issue before the Commission was whether the AMWU had satisfied all the requirements set out in section 443(1) of the Act, particularly the necessity for a notification period and the genuineness of the union's efforts to reach an agreement. The Commission had to assess whether the AMWU had genuinely tried to reach an agreement with Nestle and if the notification period for the proposed agreement had been met. This was confirmed through the declaration provided by Chloe Simmons, an Industrial Officer, who detailed the union's bargaining efforts and commitment to reaching an agreement with Nestle.

The Deputy President Hampton concluded that the AMWU had fulfilled all the statutory requirements and was genuinely attempting to reach an agreement. The Commission was satisfied that the notification period had been observed and that the AMWU's application met the criteria under section 443(1) of the Act. Consequently, the Commission granted the AMWU's application and issued an order permitting the ballot to be conducted by Vero Engagement & Voting Solutions Pty Ltd. The voting period was set to close on 14 February 2025. This decision also triggered the compulsory conciliation conference under section 448A, which would be handled by another member of the Commission.

The Commission's order not only allowed the ballot to proceed but also mandated the attendance of all bargaining representatives at the compulsory conciliation conference. This was to ensure that the parties engaged in meaningful negotiations. Further directions were likely to be issued to prepare the parties for this conference. This decision was pivotal in facilitating the industrial process and ensuring that the rights of both the union and the employer were protected within the legislative framework of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established