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

[2024] FWC 2952

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

Patties Foods Pty Ltd T/A Patties Food Group

(B2024/1393)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 24 OCTOBER 2024

Proposed protected action ballot of employees of Patties Foods Pty Ltd T/A Patties Food Group

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 Patties Foods Pty Ltd trading as Patties Food Group (Patties Foods or Employer).

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

On 24 October 2024, the Commission was advised that the Employer, in effect, did not object to the Application as amended.

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 Stephen Fodrocy, Industrial Officer, AMWU Victorian Branch, 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 Patties Foods, 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 8 November 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR780562.

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. To the extent that this matter involves any additional bargaining representatives, that Member will issue an Order requiring their attendance 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] B2024/1394.

[2] 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

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers' Union (AMWU), has applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of Patties Foods Pty Ltd trading as Patties Food Group. The application was made under section 437 of the Fair Work Act 2009. The AMWU sought the order in relation to a proposed enterprise agreement. Patties Foods, while not objecting to the application, did not contest the matter, resulting in the decision being made without a hearing.

The primary legal issue before the Deputy President was whether the AMWU had satisfied the prerequisites for a protected action ballot under the Fair Work Act. This involved verifying if the AMWU had genuinely attempted to reach an agreement with the employer, Patties Foods, and if all procedural requirements were met. The Deputy President reviewed the declaration provided by Stephen Fodrocy, an Industrial Officer of the AMWU, which outlined the steps taken during the bargaining process and confirmed the union's genuine efforts to reach an agreement.

Upon reviewing the application and the declaration, the Deputy President determined that all conditions for a protected action ballot were met. The union had genuinely attempted to reach an agreement and had fulfilled the notification time and other statutory requirements under section 443 of the Fair Work Act. The Deputy President set the closing date for voting at 8 November 2024, ensuring compliance with section 443(3)(c). Vero Engagement & Voting Solutions Pty Ltd, approved as a ballot agent, was authorised to conduct the ballot. The decision also included assigning the matter to another Commission member for a compulsory conciliation conference under section 448A, with additional bargaining representatives required to attend.

This case underscores the importance of procedural compliance and genuine bargaining efforts in obtaining a protected action ballot order under the Fair Work Act. The Commission's decision highlights the necessity for unions to demonstrate their genuine attempts at negotiation and for employers to engage constructively in the process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established