"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Thompsons, Kelly & Lewis Pty Ltd T/A Flowserve Pump Division

[2024] FWC 342

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

Thompsons, Kelly & Lewis Pty Ltd T/A Flowserve Pump Division

(B2024/99)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 8 FEBRUARY 2024

Proposed protected action ballot of employees of Thompsons, Kelly & Lewis Pty Ltd T/A Flowserve Pump Division

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 Thompsons, Kelly & Lewis Pty Ltd T/A Flowserve Pump Division (Flowserve or Employer).

On 7 February 2024, the Commission was advised that Flowserve, 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 Ms Chloe Simmons on behalf of the AMWU, 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 Flowserve, 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. 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 22 March 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR771112.

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 involved 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] This is, in effect, 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide on an application by the Australian Manufacturing Workers’ Union (AMWU) for a protected action ballot order for certain employees of Thompsons, Kelly & Lewis Pty Ltd T/A Flowserve Pump Division. The AMWU sought the order under section 437 of the Fair Work Act 2009, as part of their efforts to reach an agreement with the employer. The employer did not object to the application, and the matter was determined by the Deputy President on the submitted documents without a hearing. The Deputy President found that the AMWU had followed the necessary steps and was genuinely attempting to reach an agreement with the employer, satisfying the requirements for a notification time and the conditions of section 443(1) of the Act.

The central legal issue was whether the AMWU had fulfilled the criteria under section 437 of the Fair Work Act to be granted a protected action ballot order. This involved assessing whether the union had genuinely been attempting to reach an agreement with the employer and if the notification time for the proposed agreement was properly established. The Deputy President concluded that the AMWU had indeed met these criteria, based on the declaration provided by Ms Chloe Simmons and the evidence of ongoing bargaining efforts. Additionally, the Deputy President addressed the procedural aspects, including setting the closing date for the ballot and assigning the matter for a compulsory conciliation conference under section 448A of the Act.

The Deputy President granted the AMWU's application, allowing the ballot to proceed as requested. The Australian Electoral Commission was directed to conduct the ballot, with voting to close on 22 March 2024. This date was set to accommodate the requirements of the Australian Electoral Commission for conducting a ballot. Furthermore, the Deputy President assigned the matter to another member of the Commission for a compulsory conciliation conference, intending to facilitate meaningful negotiations between the parties involved. This decision ensures that the process for reaching an enterprise agreement continues under the oversight of the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established