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

[2022] FWC 1314

[2022] FWC 1314

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

(B2022/470)

COMMISSIONER HUNT BRISBANE, 27 MAY 2022

Proposed protected action ballot of employees of Superior Pak Pty Ltd

1. On 20 May 2022, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU, the Applicant) made an application under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Superior Pak Pty Ltd (the Respondent). The application was accompanied by a Form F34B statutory declaration of Mr Edward Couch, State Organiser of the AMWU.

1. Certain employees of the Respondent are presently engaged in enterprise agreement bargaining to replace the Superior Pak Pty Ltd – Bundaberg – Enterprise Agreement 2019 (the Agreement). The nominal expiry date of the Agreement is 3 June 2022.

1. On the basis of the material before me, including the statutory declaration and witness  statement of Mr Couch, setting out the steps taken by the AMWU in bargaining with the Respondent and confirming that the AMWU 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 section 443(1) of the Act have been met.

1. The AMWU sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. The person proposed in the application as the protected action ballot agent is IRIQ Law Pty Ltd (IRIQ). Mr Faiyaz Devjee, Principal of IRIQ, has provided a statutory declaration for the purpose of addressing the matters in s.444 of the Act, and Regulation 3.11 of the Fair Work Regulations 2009 (the Regulations), as to how IRIQ and Mr Devjee are each a fit and proper person to conduct the ballot. Mr Devjee set out that he would carry out the functions of the protected ballot agent for IRIQ, and that he has relevant experience in conducting protected action ballots, and confirmed his understanding of the requirements of Regulations 3.16 and 3.18 of the Regulations.

1. Regulation 3.11 of the Regulations requires the Commission to be satisfied that when a proposed ballot agent is a body corporate that each individual who will carry out the functions of the protected action ballot agent for the body corporate is a fit and proper person to conduct the ballot and that the requirements in subregulations (2) to (6) are met for the individual.  Having regard to the information before me, I am satisfied that IRIQ and Mr Devjee:

(a)   are capable of ensuring the secrecy and security of votes cast in the ballot;

(b)   are capable of ensuring that the ballot will be fair and democratic;

(c)   are capable of conducting the ballot expeditiously;

(d)   have agreed to be a protected action ballot agent; and

(e)   are bound to comply with the Privacy Act 1988 in respect of the handling of information relating to the proposed action ballot.

1. Therefore I appoint IRIQ as the protected action ballot agent.

1. The Order [PR742019] will be issued concurrently with this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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