"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v South Australian Water Corporation T/A SA Water

[2024] FWC 3213

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

South Australian Water Corporation T/A SA Water

(B2024/1512)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 21 NOVEMBER 2024

Proposed protected action ballot of employees of South Australian Water Corporation Trading as SA Water

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 South Australian Water Corporation T/A SA Water (SA Water or Employer).

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 agreement.[1]

On 21 November 2024, the Commission was advised that the Employer, in effect, 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 Paul Donnell, State Organiser, 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 SA Water, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

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 5 December 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 PR781477.

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] B2024/1510.

[2] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, led by Deputy President Clancy, was presented with an application from the Australian Manufacturing Workers' Union (AMWU) seeking a protected action ballot order for certain employees of South Australian Water Corporation Trading as SA Water. The AMWU sought to hold a ballot to authorise protected industrial action, as provided for in Section 437 of the Fair Work Act 2009. The union argued that it had genuinely tried to reach an agreement with SA Water and that there was a notification time in relation to the proposed agreement. Concurrently, another union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), made a separate application for a protected action ballot order regarding the same proposed agreement. Notably, SA Water did not object to the AMWU's application.

The central legal issue for the Commission was whether the AMWU had met the statutory requirements to hold a ballot for protected industrial action. This involved determining whether the union had genuinely attempted to negotiate an agreement with SA Water and whether the notification time for the proposed agreement was appropriate. Additionally, the Commission had to ensure that the ballot would be conducted by a recognised agent, Democratic Outcomes Pty Ltd (CiVS), and set a closing date for the ballot.

The Commission concluded that the AMWU had satisfied the statutory prerequisites under Section 443(1) of the Fair Work Act. It was satisfied that the union had genuinely attempted to reach an agreement with SA Water and that there was a notification time for the proposed agreement. Furthermore, the Commission confirmed that CiVS was an approved ballot agent under Section 468A of the Act, allowing it to conduct the ballot. Consequently, the Deputy President set the closing date for the ballot as 5 December 2024, effectively 10 working days from the making of the Order. The decision also included an order for a compulsory conciliation conference, to be conducted by another Member of the Commission, with attendance required from all bargaining representatives. The Commission's decision was made on the papers, without the need for a hearing, given SA Water's lack of objection to the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established