"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v The Smith's Snackfood Company Pty Ltd Summary

[2025] FWC 806

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

The Smith's Snackfood Company Pty Ltd

(B2025/495)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 21 MARCH 2025

Proposed protected action ballot of employees of The Smith's Snackfood Company 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 The Smith's Snackfood Company Pty Ltd (Smith’s or Employer).

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

On 20 March 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 Mark Plunkett, Acting Assistant State Secretary, 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 Smith's, 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 2 April 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR785414.

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. 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] B2025/492 and B2025/497, respectively.

[2] This is, in effect, 8 working days from the making of the Order and was the specific date sought in the application. This also coincides with the related matters.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers' Union (AMWU), has lodged an application with the Fair Work Commission under section 437 of the Fair Work Act 2009, seeking a protected action ballot order for employees of The Smith's Snackfood Company Pty Ltd (Smith's). This application was made to facilitate a ballot concerning a proposed enterprise agreement between the AMWU and Smith's. Notably, two other unions, the United Workers' Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, have also applied for similar orders in relation to the same proposed agreement. The employer, Smith's, has indicated that it does not object to the AMWU's application. Consequently, the Deputy President, Hampton, decided to determine the application based on the submitted documentation without necessitating a hearing.

The central legal issue before the court was whether the AMWU had fulfilled the statutory requirements under section 443 of the Fair Work Act to conduct a protected action ballot. The AMWU had to demonstrate that it had genuinely attempted to reach an agreement with Smith's and that a notification period had been provided. The evidence presented, including a declaration by Mark Plunkett, Acting Assistant State Secretary of the AMWU, confirmed that the union had engaged in good faith negotiations and had satisfied the notification period. Additionally, the suitability of Fair Vote Services Pty Ltd, the appointed ballot agent, was confirmed, as it was registered under section 468A of the Act.

The Deputy President, Hampton, found that all statutory requirements were met, and granted the AMWU's application for a ballot order. The decision specified that the voting period would conclude on 2 April 2025, aligning with the related applications from the other unions. The matter was subsequently assigned to another member of the Commission to conduct a compulsory conciliation conference under section 448A of the Act. This conference would involve all bargaining representatives to facilitate meaningful negotiations and address the proposed enterprise agreement.

The orders issued by the Deputy President mandated that the protected action ballot be conducted by Fair Vote Services Pty Ltd and that all relevant parties attend the compulsory conciliation conference. Directions were also anticipated to ensure that the parties would be prepared for effective negotiations during the conference. The decision underscores the importance of procedural compliance in union balloting processes and the Commission's role in overseeing fair and lawful industrial actions.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v The Smith's Snackfood Company Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established