"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v SUEZ Water Pty Ltd T/A SUEZ Australia & New Zealand

[2025] FWC 407

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

SUEZ Water Pty Ltd T/A SUEZ Australia & New Zealand

(B2025/237)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 12 FEBRUARY 2025

Proposed protected action ballot of employees of SUEZ Water Pty Ltd T/A SUEZ Australia & New Zealand

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 SUEZ Water Pty Ltd T/A SUEZ Australia & New Zealand (SUEZ or Employer). The parties are bargaining for an agreement to replace the SUEZ Water Pty Ltd Adelaide Service Delivery Production and Treatment Operators Enterprise Agreement 2021 – 2024.

I note that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)[1] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 11 February 2025, 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 SUEZ, 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 the Australian Electoral Commission (AEC).

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 27 March 2025.[2]

An Order has been separately issued in PR784254.

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] B2025/212.

[2] This is, in effect, 30 working days from the making of the Order, which is the minimum period required by the AEC.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) lodged an application under section 437 of the Fair Work Act 2009, seeking an order for a protected action ballot in relation to employees of SUEZ Water Pty Ltd T/A SUEZ Australia & New Zealand. The application was made to facilitate negotiations for a replacement agreement for the SUEZ Water Pty Ltd Adelaide Service Delivery Production and Treatment Operators Enterprise Agreement 2021-2024. The AMWU and SUEZ were engaged in bargaining for the new enterprise agreement, and the AMWU sought to organise a ballot to potentially undertake protected industrial action if the negotiations were unsuccessful.

The primary legal issue for the court was to determine whether the AMWU had satisfied the requirements under section 437 of the Fair Work Act for the grant of a protected action ballot order. The AMWU needed to demonstrate that it had genuinely attempted to negotiate with the employer and that there was a notification period in relation to the proposed agreement. The court also had to consider whether the ballot date set by the Australian Electoral Commission complied with the statutory minimum period.

The Fair Work Commission Deputy President Hampton found that the AMWU had met the statutory requirements for a protected action ballot order. The declaration of Paul Donnell, State Organiser for the AMWU, provided sufficient evidence that the union had genuinely attempted to negotiate with SUEZ. The Commission was satisfied that there was a notification period and that all conditions under section 443(1) of the Act were fulfilled. The Deputy President also determined that the ballot closing date of 27 March 2025 was appropriate and complied with the requirements of the Australian Electoral Commission. Consequently, the court issued the requested Order and assigned the matter to another member for a compulsory conciliation conference.

This decision underscores the procedural requirements for a union to organise a protected action ballot under the Fair Work Act. The court confirmed that the AMWU had satisfied the necessary criteria, allowing the ballot to proceed. The determination also highlighted the importance of genuine negotiations and compliance with statutory timelines for conducting such a ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established