“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v SMR Automotive Australia Pty Ltd T/A SMR Automotive Australia Pty Ltd

[2024] FWC 851

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

SMR Automotive Australia Pty Ltd T/A SMR Automotive Australia Pty Ltd

(B2024/397)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 4 APRIL 2024

Proposed protected action ballot of employees of SMR Automotive Australia Pty Ltd T/A SMR Automotive Australia 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 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 SMR Automotive Australia Pty Ltd T/A SMR Automotive Australia Pty Ltd (SMR or Employer). This matter is related to B2024/394 and B2024/399.

On 3 April 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 Mark Plunkett, AMWU, setting out the steps taken by the Applicant in bargaining with the Employer and that they have been, and are, genuinely trying to reach agreement with the Employer, 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.

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 17 May 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR773126.

This matter will shortly be listed for a s.448A compulsory conciliation conference. An Order will be issued requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is in effect 30 working days from the date of the order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers’ Union (AMWU) applied to the Fair Work Commission for an order permitting a protected action ballot among employees of SMR Automotive Australia Pty Ltd. This application was pursuant to section 437 of the Fair Work Act 2009, seeking to facilitate a ballot in relation to certain employees amidst ongoing bargaining with the employer. SMR Automotive Australia Pty Ltd did not object to the application, and the Commission proceeded to determine the matter on the basis of the submitted documents.

The primary legal issues before the Commission involved verifying whether the AMWU had genuinely attempted to reach an agreement with SMR Automotive Australia Pty Ltd, and whether all statutory requirements for conducting the ballot had been fulfilled. Specifically, the Commission needed to ascertain if the union had taken sufficient steps in good faith to negotiate with the employer, and if all conditions under section 443 of the Act were met, including the notification period for the proposed agreement.

Upon reviewing the material provided, including the declaration from Mark Plunkett of the AMWU, the Deputy President concluded that the union had indeed been genuinely attempting to reach an agreement with SMR Automotive Australia Pty Ltd. Furthermore, the Deputy President found that all the prerequisites under section 443(1) of the Act were satisfied. Consequently, the Commission determined that the voting period for the ballot would close on 17 May 2024, establishing the ballot period for the purposes of section 448A(2) of the Act.

The Commission also issued an order requiring the attendance of all bargaining representatives in a compulsory conciliation conference, aiming to facilitate meaningful negotiations. This order ensures that the parties are prepared to engage in substantive discussions towards reaching an agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established