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

[2022] FWC 2998

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

Santos Ltd

(B2022/1699)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 11 NOVEMBER 2022

Proposed protected action ballot of employees of Santos Ltd.

This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Santos Ltd (Respondent).

On 11 November 2022, my Associate was advised that the Respondent did not object to the application and that the parties had agreed to some amendments to the draft 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 Mr Stuart Gordon of the Applicant 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 the requirements in s.443(1) of the Act have been met.
The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

Therefore I appoint CiVS as the protected action ballot agent.

An order has been separately issued in PR747848.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers’ Union (AMWU) sought an order from the Fair Work Commission for a protected action ballot to be conducted amongst certain employees of Santos Ltd. The AMWU applied under section 437 of the Fair Work Act 2009, seeking permission to hold a ballot in relation to proposed protected action. The Commission was required to consider whether the AMWU had met the prerequisites for holding a ballot under the Act, and whether Democratic Outcomes Pty Ltd trading as CiVS was a suitable agent to conduct the ballot.

The Commission assessed the evidence provided by the AMWU, including the declaration of Mr Stuart Gordon, which outlined the union’s efforts to negotiate with Santos Ltd. The Deputy President was satisfied that the AMWU had met the notification time requirement and had genuinely attempted to reach an agreement with Santos Ltd. The Commission also examined the suitability of CiVS as the ballot agent, taking into consideration the statutory declaration provided by Mr Michael M Michael, the Managing Director of CiVS. The Deputy President determined that CiVS was a fit and proper person to conduct the ballot and that they were capable of ensuring the secrecy and security of the votes.

The Fair Work Commission granted the AMWU’s application for a protected action ballot, with CiVS appointed as the ballot agent. The Commission was satisfied that the AMWU had met the requirements of the Fair Work Act and that CiVS was a suitable agent to conduct the ballot. The decision was made on the papers without a hearing, as the respondent did not object to the application and the parties had agreed to some amendments to the draft order. An order was separately issued in PR747848.

The Fair Work Commission ordered that a protected action ballot be conducted amongst certain employees of Santos Ltd, with CiVS acting as the ballot agent. The AMWU was granted permission to hold the ballot, and CiVS was appointed as the suitable agent to conduct the ballot. The Commission was satisfied that the AMWU had met the requirements of the Fair Work Act and that CiVS was a fit and proper person to conduct the ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established