"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Superior PAK Pty Ltd

[2025] FWC 2451

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

Superior PAK Pty Ltd

(B2025/1310)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 20 AUGUST 2025

Proposed protected action ballot of employees of Superior PAK 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 Superior PAK Pty Ltd (Superior PAK or Employer).

On 19 August 2025, the Commission was advised that the Employer did not oppose the making of the order but sought amendments to several of the proposed questions set out in clause 5, and highlighted some other drafting issues in their version of an amended order. The AMWU did not consent to these proposed changes, however offered a “safety undertaking” which was ultimately accepted.

In the circumstances, I have today held a hearing to determine the matter. During the course of the hearing, the parties advised that a consent position had been reached on one of the proposed questions, and that the Employer no longer pressed the remaining changes to the questions and the other drafting issues. Having explored the basis for that agreed position, I have granted leave to amend the application to reflect the position reached between the parties in the course of the hearing and now determined the application.

The undertaking the AMWU will provide to the Employer in any notice of industrial action is as follows:

The AMWU undertakes to ensure that in an emergency situation where there is a risk to personal health or safety and where no other workers are available, AMWU members will be available to perform work. AMWU members will not engage in industrial action that would endanger the life, personal safety, health or welfare of the population or part thereof.

On the basis of the material before me, including the declaration of Jack Hargreaves, 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 Superior PAK, 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 Fair Vote Services Pty Ltd (Fair Vote). Fair Vote 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 3 September 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

The structure of the draft order has been amended to reflect the Fair Work Commission’s standard template and this includes certain provisions that were discussed with the parties during the hearing.

An Order has been separately issued in PR790873.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. 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

Appearances:

P Nguyen, with J Hargreaves for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

M Waters of MRH Lawyers (with permission), with P Johnson and W Kruger for Superior PAK Pty Ltd.

Hearing details:

2025
MS Teams Video.
August 20.

[1] 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

The Australian Manufacturing Workers' Union (AMWU), also known as the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union", applied to the Fair Work Commission for a protected action ballot order against Superior PAK Pty Ltd under section 437 of the Fair Work Act 2009. The AMWU sought to organise a ballot of certain employees of Superior PAK Pty Ltd to approve potential protected industrial action. Superior PAK Pty Ltd initially opposed the application but later withdrew their opposition and proposed amendments to the ballot questions. The AMWU did not consent to these amendments but offered a safety undertaking, which was accepted. The Deputy President of the Fair Work Commission, Hampton, presided over the hearing where it was revealed that the parties had reached a consensus on one of the proposed questions, and the employer dropped the remaining changes and issues.

The key legal issues the court had to address were whether the AMWU had satisfied the requirements of section 443 of the Act to apply for a protected action ballot order, and whether the proposed safety undertaking adequately addressed the employer's concerns. The court also had to determine if the proposed date for closing the ballot was reasonable and if the ballot agent, Fair Vote Services Pty Ltd, was appropriately appointed. The Deputy President found that the AMWU had met the notification time requirement and had genuinely attempted to negotiate with Superior PAK Pty Ltd, satisfying the prerequisites of section 443(1) of the Act. The court accepted the safety undertaking as sufficient to protect the employer's interests during any potential industrial action.

The Fair Work Commission granted the AMWU's application, amended the ballot order to align with their standard template, and appointed Fair Vote Services Pty Ltd as the ballot agent. The court set 3 September 2025 as the closing date for the ballot, effectively 10 working days from the order date, which was in line with the AMWU's request. The matter was subsequently assigned to another member of the Commission to conduct a compulsory conciliation conference, aimed at facilitating meaningful negotiations between the parties regarding a potential enterprise agreement. The court also issued directions to ensure that all bargaining representatives attended the conference prepared to negotiate effectively.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established