"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v PACCAR Australia Pty Ltd T/A Kenworth Trucks Summary

[2023] FWC 1527

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

PACCAR Australia Pty Ltd T/A Kenworth Trucks

(B2023/642)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 27 JUNE 2023

Proposed protected action ballot of employees of PACCAR Australia Pty Ltd TA Kenworth Trucks

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 the Respondent, PACCAR Australia Pty Ltd T/A Kenworth Trucks (PACCAR).

The application was lodged on 26 June 2023. It has been served upon the employer and the ballot agent. The Commission been advised that the Respondent does 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 Mr Andrew Bonello, AMWU Industrial Officer, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, 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 (20 June 2023) has been established by this Commission.[1]

An order has been separately issued in PR763587.

This matter will be assigned to another Member of the Commission to conduct the s.448A conference and this Member will issue the Order requiring 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] 1This is the minimum period required by the Australian Electoral Commission.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Manufacturing Workers’ Union (AMWU) applied for a protected action ballot order under section 437 of the Fair Work Act 2009 against PACCAR Australia Pty Ltd trading as Kenworth Trucks (PACCAR). The AMWU sought to conduct a ballot of certain employees of PACCAR to determine whether to take protected industrial action. PACCAR did not object to the application. The Deputy President Hampton, in Adelaide, decided to determine the matter on the papers without a hearing, based on the declaration of an AMWU Industrial Officer and the information provided. The ballot was to be conducted by the Australian Electoral Commission, and the ballot period was set at a minimum of 30 working days from the date of the order.

The legal issues before the court involved whether the AMWU had met all the requirements under section 443(1) of the Act, including providing the necessary notification time, and whether it had been genuinely trying to reach an agreement with PACCAR. Additionally, the court needed to determine an appropriate ballot period, taking into account the minimum period required by the Australian Electoral Commission. The Deputy President Hampton examined the material provided, including the declaration of the AMWU Industrial Officer, and found that the AMWU had met all the requirements and had genuinely attempted to reach an agreement.

The Deputy President Hampton concluded that the AMWU had satisfied the necessary conditions for a protected action ballot order. The court noted that PACCAR did not object to the application, and the AMWU had provided a declaration detailing its efforts to negotiate with PACCAR. The Deputy President Hampton established a ballot period of 30 working days from the date of the order, which was the minimum period required by the Australian Electoral Commission. The matter was assigned to another Member of the Commission to conduct the section 448A conference, with directions to be issued to ensure meaningful negotiations.

This decision granted the AMWU's application for a protected action ballot order and established the ballot period. The AMWU was permitted to conduct the ballot of certain PACCAR employees, and the matter was referred to another Member of the Commission for further negotiations.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established