"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Sealed Air Australia Pty Limited

[2024] FWC 1554

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)

Sealed Air Australia Pty Limited

(B2024/764)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 14 JUNE 2024

Proposed protected action ballot of employees of Sealed Air Australia Pty Ltd (Fawkner Site)

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 Sealed Air Australia Pty Ltd (Sealed Air or Employer) who are currently covered by the Sealed Air Australia (Fawkner Site) Maintenance Enterprise Agreement 2021-2024.

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

On 14 June 2024, the Commission was advised that the Employer 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 AMWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with it, 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 (AEC).

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 26 July 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 PR776044.

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] B2024/762.

[2] This is, in effect, 30 working days from the making of the Order, which is the minimum period required by the AEC to conduct the ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application from the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers' Union (AMWU), under Section 437 of the Fair Work Act 2009. The AMWU sought a protected action ballot order concerning specific employees of Sealed Air Australia Pty Ltd at the Fawkner site, who are governed by the Sealed Air Australia (Fawkner Site) Maintenance Enterprise Agreement 2021-2024. The application was made in the context of the union's attempts to negotiate a new agreement with Sealed Air. Another union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, had concurrently filed a separate application for a protected action ballot order regarding the same proposed enterprise agreement. Sealed Air did not oppose the AMWU's application, leading to the Commission deciding to adjudicate the matter based on the submitted documents without the need for a hearing.

The central legal issue before the Commission was whether the AMWU had satisfied the prerequisites for a protected action ballot order as stipulated in Section 443(1) of the Fair Work Act. This included verifying if the union had genuinely attempted to reach an agreement with Sealed Air, if a notification period was applicable, and if all procedural requirements were fulfilled. The evidence provided by Chloe Simmons, an Industrial Officer for the AMWU, was pivotal. Her declaration detailed the union's negotiation efforts with the employer, confirming that the union was genuinely striving to achieve an agreement. The Commission also had to determine a suitable closing date for the ballot, ensuring it aligned with the Australian Electoral Commission's requirements for conducting the ballot.

The Deputy President, Hampton, concluded that the AMWU had indeed fulfilled all the necessary requirements for a protected action ballot order. The Commission was satisfied with the union's genuine efforts in bargaining and the adherence to the notification period. Additionally, the Deputy President set the ballot's closing date as 26 July 2024, which met the minimum period required by the Australian Electoral Commission for conducting the ballot. The decision also established the ballot period for the purposes of Section 448A(2) of the Act. The matter will proceed to a compulsory conciliation conference, where all bargaining representatives will be required to attend and engage in meaningful negotiations. The Commission may issue further directions to ensure compliance with the conference's requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established