“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v NOV Australia Pty Ltd

[2025] FWC 201

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)

NOV Australia Pty Ltd

(B2025/146)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 21 JANUARY 2025

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

I note that the United Workers’ Union (UWU)[1] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 21 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 AMUWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with NOV, 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). Vero 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 5 February 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR783531.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. 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] B2025/145.

[2] This is, in effect, 10 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 case involves the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union," known as the Australian Manufacturing Workers' Union (AMWU), which has made an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of NOV Australia Pty Ltd (NOV). The application is related to a proposed enterprise agreement, and the United Workers' Union (UWU) has made a separate application regarding the same agreement. The application was heard by Deputy President Hampton of the Fair Work Commission on 21 January 2025, in Adelaide. NOV did not object to the AMWU's application, leading the Commission to decide the matter without a hearing, based on the submitted documents.

The legal issues in the case revolve around whether the AMWU had genuinely tried to reach an agreement with NOV and whether all the requirements of section 443(1) of the Fair Work Act were met for the ballot to be conducted. The AMWU had to demonstrate that it was genuinely attempting to reach an agreement and that a notification time for the proposed agreement existed. The Court had to ascertain if Vero Engagement & Voting Solutions Pty Ltd, the appointed ballot agent, was eligible and authorised to conduct the ballot as per section 468A of the Act. Additionally, the Commission needed to determine the closing date for voting as required by section 443(3)(c) of the Act.

The Court found that the AMWU had genuinely tried to reach an agreement with NOV and that all requirements of section 443(1) of the Act had been fulfilled. Vero was approved as a ballot agent under section 468A and was authorised to conduct the ballot. The Court set the voting closure date as 5 February 2025, which also served as the ballot period under section 448A(2) of the Act. Consequently, the Deputy President issued an order to conduct a compulsory conciliation conference related to the proposed enterprise agreement, with another member of the Commission overseeing the process. The order required all bargaining representatives to attend the conference and issued directions to ensure meaningful negotiations.

The final orders included the approval of the ballot agent and the setting of the voting closure date. The matter was assigned to another member of the Commission to handle the compulsory conciliation conference. An order was also issued to mandate the attendance of all bargaining representatives in the conference, along with issuing directions to facilitate meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established