"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 1548

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

(B2024/760)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 14 JUNE 2024

Proposed protected action ballot of employees of Sealed Air Australia Pty Ltd (Tullamarine 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 Pty Ltd (Tullamarine Site) AMWU/ETU 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 PR776013.

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] B2024/761.

[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 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), also known as the Australian Manufacturing Workers' Union, has applied to the Fair Work Commission for an order to hold a protected action ballot under section 437 of the Fair Work Act 2009. The application concerns certain employees of Sealed Air Australia Pty Ltd (Sealed Air) at the Tullamarine site. The AMWU is seeking to conduct the ballot in relation to a proposed enterprise agreement. Sealed Air has not objected to the application. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has made a separate application for a ballot in relation to the same proposed agreement.

The legal issues before the Commission were whether the AMWU had met the requirements under section 443 of the Fair Work Act to apply for a ballot and whether the Commission should grant the application. The AMWU had provided a declaration by an industrial officer outlining the union's bargaining with Sealed Air and its attempts to reach agreement. The Commission was satisfied that the notification period for the proposed agreement had been met and that all the requirements under section 443(1) of the Act had been fulfilled. The Commission determined the ballot closing date as 26 July 2024.

The Fair Work Commission granted the AMWU's application for a protected action ballot order. The Commission was satisfied that the union had met the requirements to apply for a ballot and determined the ballot closing date as 26 July 2024. The ballot will be conducted by the Australian Electoral Commission. The Commission will assign another member to conduct the compulsory conciliation conference in relation to the proposed agreement. Directions may also be issued to ensure the parties attend the conference ready to negotiate.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established