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

[2024] FWC 795

[2024] FWC 795

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

Simplot Australia Pty Limited

(B2024/268)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 2 APRIL 2024

Proposed protected action ballot of employees of Simplot Australia Pty Limited

1. This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (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 Simplot Australia Pty Limited (Simplot or Employer). 

1. 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 enterprise agreement.[1]

1. On 28 March 2024, the Commission was advised that Simplot did not, in effect, object to the Application.[2] However, it sought a longer ballot period than that proposed by the AMWU and both parties were invited to provide submissions on the issue, which was done.

1. I observe that Simplot also initially raised a concern about a previous ballot order remaining in place concerning the same employees. It was subsequently confirmed with both parties that this order was earlier revoked by the Commission under s.448 of the Act.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the declaration of Andrew Bonello, Industrial Officer, AMWU, 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 Simplot, 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.

1. The ballot is to be conducted by Vero Engagement & Voting Systems Solutions Pty Ltd T/A Vero Voting (Vero Voting). Vero Voting has been approved as an eligible protected action ballot agent under s 468A of the Act[3] and consequently is authorised to conduct the ballot.

1. For the purposes of s.443(3)(c) of the Act, the Commission must determine the date by which voting is to close. This also establishes the ballot period for the purpose of s.448A(2) of the Act. The AMWU propose that this date be 8 working days from the making of the Order whilst Simplot contend that it be no earlier than 10 working days from that point.

1. The Full Bench of the Commission in CEPU v Nilsen (NSW) Pty Ltd[4] (CEPU v Nilsen), considered the approach to be adopted by the Commission in establishing the ballot period. Amongst other matters, the Full Bench confirmed:

·  The Commission must determine the ballot period in each case as a matter of discretion and is not bound to grant the date proposed in the application and draft order, or that proposed by the employer.[5]

·  Section 443(3A) of the Act requires the Commission to establish a ballot period that enables the ballot to be conducted as expeditiously as practicable. This focuses attention on the process of conducting the ballot. “Expeditiously” connotes quickly and efficiently and the notion of “practicable” means that something can be done or put into practice successfully. This provision does not require the Commission to ensure that the ballot closes as quickly as possible. [6]

·  There are a range of case specific considerations, including matters such as the capacity for the ballot to be properly conducted and the views and circumstances of the parties, including the size and nature of the workforce and the ballot process itself, that are or maybe relevant to the exercise of the discretion to set the ballot period. Within the framework of enabling the ballot to be conducted as expeditiously as practicable, the implications of the requirement to order attendance at, and to conduct, the s.448A compulsory conciliation conference during the ballot period is also a relevant statutory context and consideration in setting that period. This is reinforced by the potential consequences of non-attendance by a bargaining representative at such a conference, the legislative purpose of s.448A within the scheme of the Act, and the practical consequences of arranging and conducting the conference at which all bargaining representatives can attend and fully participate and where the Commission can deploy the range of dispute resolution techniques contemplated by the Act.[7]

1. Amongst other matters, the AMWU contends that the period it proposes is appropriate having regard to the factors identified in CEPU v Nilson and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v SIMPEC Pty Ltd[8] as applied to the facts of this matter. This includes that the parties have already prepared for an earlier s.448A compulsory conciliation conference associated with a previous matter.

1. Simplot contends that the period should be longer on the basis that the Commission is not required to specify the earliest date that the ballot can be conducted and that there was no material before the Commission about some matters raised in CEPU v Nilson.  Further, it contends that the previously ballot issued by the Commission had a 30-day ballot period.

1. Having regard to all of the circumstances evident in this matter, I have determined that the date that the ballot is to close is 12 April 2024. This is, in effect, a period of 8 clear working days after the making of the Order. This date will enable the ballot to be conducted as expeditiously as practicable. In reaching that conclusion, I consider that this period appropriately takes into account and balances the various consideration relevant to this application. In terms of the absence of material concerning certain factors cited in CEPU v Nilson, the Full Bench in that matter made it clear that the factors referred to may be relevant depending upon the circumstances of the matter.

1. In this case, the ballot is to be conducted electronically, there is no indication that the particular location(s) or nature of the workforce is likely to impact upon the necessary time to conduct the ballot appropriately, given the length of the competing proposals, and the period determined takes account of the implications of the s.448A conference given the circumstances of these parties and the available resources of the Commission.

1. I observe that the previous ballot concerning these parties specified a ballot period of 30 working days. However, this was in the context of a postal ballot to be conducted by the Australian Electoral Commission (AEC). That period is the minimum required by the AEC to conduct such a ballot and was, in that case, the period that enabled the ballot to be conducted as expeditiously as practical.

1. I also observe that to the extent that there is some difference of view about how soon the ballot period should open after the parties have provided their respective lists, under the Order issued by the Commission and the terms of the Act, this is a matter that the ballot agent can adjust as part of establishing the ballot timetable.

1. An Order has been separately issued in PR772815.

1. This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the related matter (B2024/269). That Member will issue an Order requiring the attendance of all bargaining representatives involved 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] B2024/269.

[2] Simplot also raised some points of clarification/correction about certain matters set out in the application and/or accompanying declaration, including that the scope of the proposed agreement remains the subject of bargaining. These do not impact upon the making of the Order, however the Commission and the parties have noted these matters.

[3] Vero Engagement & Voting Solutions T/A Vero Voting [2023] FWC 1531.

[4] [2023] FWCFB 134.

[5] CEPU v Nilsen at [53], [58] and [79].

[6] Ibid at [58].

[7] Ibid at [66] to [79].

[8] [2024] FWC 506.

Printed by authority of the Commonwealth Government Printer

<PR772816>