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

[2023] FWC 2991

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

Paper Australia Pty Ltd T/A Opal Australian Paper

(B2023/1249)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 15 NOVEMBER 2023

Proposed protected action ballot of employees of Paper 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 Paper Australia Pty Ltd T/A Opal Australian Paper (Opal Paper or Employer).

I note that two related applications have been made by the United Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.[1]

On 15 November 2023, the Commission was advised that the Respondent, in effect, did not object to the Application, on the basis of the parties reaching agreement in relation to minor amendments to the proposed Order.

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 Andrew Bonello, 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 Opal Paper, 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 trading as Vero Voting (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act[2] 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 29 November 2023.[3] This also established the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR768310.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference, with related matters B2023/1256 and B2023/1244. That Member will issue an Order requiring the attendance of all bargaining representatives involved 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] B2023/1256 and B2023/1244.

[2] Vero Engagement & Voting Solutions Pty Ltd T/A Vero Voting[2023] FWC 1531.

[3] This is, in effect, ten (10) working days from Commencement Date of the Order, as sought by the Applicant.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) has considered an application by the Australian Manufacturing Workers’ Union (AMWU) for a protected action ballot order regarding employees of Paper Australia Pty Ltd T/A Opal Australian Paper (Opal Paper). This application was made under section 437 of the Fair Work Act 2009. The AMWU sought this order to facilitate a ballot among its members, who are employees of Opal Paper, regarding potential protected actions. Opal Paper did not object to the application, having reached an agreement with the AMWU on minor amendments to the proposed order.

The legal issues before the FWC involved determining whether the AMWU had met all requirements under the Fair Work Act to conduct the ballot and whether the ballot agent, Vero Engagement & Voting Solutions Pty Ltd trading as Vero Voting, was eligible to conduct the ballot. The AMWU provided a declaration by Andrew Bonello, an Industrial Officer, stating that the union had genuinely tried to reach an agreement with Opal Paper. The FWC was also required to establish a closing date for the voting period.

The FWC concluded that the AMWU had satisfied all statutory requirements for conducting the ballot, including the notification time and the declaration of genuine bargaining efforts. Vero Voting was approved as an eligible ballot agent under section 468A of the Act. The Commission set the closing date for voting as 29 November 2023, establishing the ballot period for further proceedings under section 448A(2) of the Act. A separate order was issued in PR768310 to manage the compulsory conciliation conference related to the enterprise agreement. The case was assigned to another Commission member to oversee the conciliation conference, ensuring meaningful negotiations between the parties.

This decision by the FWC ensures the AMWU can proceed with the ballot, allowing its members to vote on potential protected actions. The establishment of the ballot period and the approval of the ballot agent are crucial for the orderly conduct of the ballot, facilitating the negotiation process between the union and the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established