"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Sydney Water Corporation

[2023] FWC 2362

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)

Sydney Water Corporation

(B2023/979)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 15 SEPTEMBER 2023

Proposed protected action ballot of employees of Sydney Water Corporation

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Sydney Water Corporation (Sydney Water or Employer).
On 15 September 2023, the Commission was advised that Sydney Water did not object to the Application, subject to clarification about several proposed ballot questions.

In the circumstances, I conducted a hearing to deal with this application and 3 related applications; being those made by the Australian Municipal, Administrative, Clerical and Services Union (ASU)[1], the Association of Professional Engineers, Scientists and Managers, Australia (APESMA)[2] and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)[3]. All applications relate to the same proposed enterprise agreement. As a result of discussions between the parties in and around the hearing, an agreed set of questions has been provided and leave has been given to amend the application accordingly.

On the basis of the material before me, including the declaration of Ms Linda Everingham, 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 Sydney 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 the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act [4]and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, and in consultation with the parties, the Commission has determined that the date by which voting is to close is 29 September 2023.[5] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR766217.
This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matters. To the extent that this matter involves any additional bargaining representatives, the Commission will also issue the Order requiring their attendance 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] B2023/977.

[2] B2023/978.

[3] B2023/987.

[4] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[5] This is, in effect, ten (10) working days from the date effect of the Order

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) applied to the Fair Work Commission for an order under section 437 of the Fair Work Act 2009, seeking a protected action ballot for certain employees of Sydney Water Corporation. Sydney Water did not object to the application, subject to clarification on several proposed ballot questions. The AMWU had been in negotiations with Sydney Water regarding a proposed enterprise agreement and sought to conduct a ballot to determine if employees wished to take protected action.

The legal issues before the Commission included whether the AMWU had genuinely attempted to reach an agreement with Sydney Water, whether the notification time for the proposed agreement had passed, and whether the requirements of section 443(1) of the Act were met. The Commission also needed to determine an appropriate closing date for the ballot, in line with section 443(3)(c) of the Act.

In making its decision, the Commission was satisfied that the AMWU had genuinely attempted to reach an agreement with Sydney Water and that the notification time had passed. The Commission also found that all requirements under section 443(1) of the Act had been met. The Commission appointed Democratic Outcomes Pty Ltd T/A CiVS (CiVS) as the ballot agent, as it had been approved as an eligible agent under section 468A of the Act. The Commission set the ballot closing date as 29 September 2023, which also established the ballot period for the purpose of section 448A(2) of the Act.

Separately, the Commission issued an order in PR766217, and assigned another Member of the Commission to conduct the compulsory conciliation conference along with the other related matters. The Commission also indicated that it would issue orders requiring additional bargaining representatives to attend the conference and likely issue directions to ensure meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established