“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Stanmore SMC Pty Ltd T/A BHP Mitsui Coal Pty Ltd Summary

[2022] FWC 3197

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

Stanmore SMC Pty Ltd T/A BHP Mitsui Coal Pty Ltd

(B2022/1781)

VICE PRESIDENT CATANZARITI

MELBOURNE, 5 DECEMBER 2022

Proposed protected action ballot of employees of Stanmore SMC Pty Ltd trading as BHP Mitsui Coal 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 (Cth) (Act) for a protected action ballot order in relation to certain employees of Stanmore SMC Pty Ltd T/A BHP Mitsui Coal Pty Ltd (Respondent).

On 1 December 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Aaron Neary of the Applicant declared on 29 November 2022, 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 PR748574.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU), acting as the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union", applied to the Fair Work Commission for a protected action ballot order in relation to employees of Stanmore SMC Pty Ltd, trading as BHP Mitsui Coal Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, concerning a proposed protected action ballot. The dispute arose from the union's efforts to negotiate terms and conditions of employment with the company. The respondent company did not oppose the application, resulting in the Commission deciding to determine the matter on the submitted papers without a hearing.

The primary legal issue before the Commission was whether the AMWU had met the statutory requirements to conduct a protected action ballot. This involved verifying that the union had genuinely attempted to reach an agreement with the employer and that the notification period specified in the Act had been fulfilled. The union provided a statutory declaration from Aaron Neary, outlining the steps taken in bargaining with the company and affirming the union's ongoing efforts to reach an agreement.

The Vice President of the Fair Work Commission, Catanzariti, reviewed the provided material and was satisfied that the AMWU had met the necessary conditions for a protected action ballot. The statutory declaration and other evidence demonstrated the union's genuine attempts to negotiate and the compliance with the notification requirements under section 443(1) of the Act. Consequently, the application was approved, and an Order was issued to allow the union to proceed with the ballot as proposed.

The final orders included the granting of the protected action ballot order, thereby permitting the AMWU to conduct the ballot among the employees of BHP Mitsui Coal Pty Ltd in accordance with the provisions of the Fair Work Act. This decision underscores the importance of the procedural requirements in the Act when unions seek to engage in protected actions to protect the rights and interests of their members.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Stanmore SMC Pty Ltd T/A BHP Mitsui Coal Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established