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

[2023] FWC 1154

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)
v

SEM Fire And Rescue Pty Ltd

(B2023/457)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 16 MAY 2023

Proposed protected action ballot of employees of SEM Fire And Rescue 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) (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of SEM Fire And Rescue Pty Ltd (Respondent).

On 16 May 2023, my Associate was advised that the Respondent 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 Mr Raoul Wainwright 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.

An order has been separately issued in PR761940.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the Australian Manufacturing Workers’ Union (AMWU) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for an order permitting a ballot of employees of SEM Fire and Rescue Pty Ltd to determine whether they would support protected industrial action. The dispute between the parties arose out of negotiations for an enterprise agreement. The AMWU contended that after extensive negotiations, the parties had not been able to reach an agreement and that the union had satisfied the requirements of the Fair Work Act to hold a ballot for protected action.

The key legal issue before the Deputy President was whether the AMWU had complied with the provisions of the Fair Work Act in relation to a ballot for protected action. Specifically, the court had to determine if the AMWU had genuinely attempted to reach an agreement with SEM Fire and Rescue and if the notification period required by the Act had been met. The AMWU provided a declaration from a representative setting out the bargaining process and asserting that it had been genuinely attempting to reach an agreement. The Respondent did not object to the application.

The Deputy President found that based on the materials provided, the AMWU had satisfied the requirements of the Fair Work Act to hold a ballot for protected action. The union had made a genuine attempt to reach an agreement through bargaining and had met the notification period required by the Act. As such, the Deputy President granted the AMWU’s application and issued an order permitting the ballot of SEM Fire and Rescue employees to proceed. A separate order was also issued in PR761940.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established