"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v UGL Rail (North Queensland) Pty Ltd Summary

[2025] FWC 207

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

UGL Rail (North Queensland) Pty Ltd

(B2025/144)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 22 JANUARY 2025

Proposed protected action ballot of employees of UGL Rail (North Queensland) 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 UGL Rail (North Queensland) Pty Ltd (UGL or Employer).

On 21 January 2025, the Commission was advised that the Employer, in effect, did not object to the Application subject to the inclusion of a safety undertaking. The parties subsequently reached a common position on this issue, and it was agreed that the undertaking would be provided in all notices of protected industrial action. The detail of the undertaking has been formally confirmed between the parties.

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 Nicole Jane Frisken, Regional 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 UGL, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS 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 6 February 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR783551.

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

[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

CaseChat Overview and Summary

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers' Union (AMWU), applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of UGL Rail (North Queensland) Pty Ltd (UGL). The AMWU sought to conduct a ballot for potential protected industrial action by its members employed by UGL, and the application was made without objection from UGL, subject to certain conditions. The primary dispute centered on the procedural requirements for a protected action ballot under the Fair Work Act and the necessity for the AMWU to demonstrate it had genuinely attempted to reach an agreement with UGL.

The legal issues before the Deputy President were whether the AMWU had complied with the notification time requirements under section 443 of the Act and whether all prerequisites for conducting a ballot were met. The Deputy President had to determine if the AMWU had genuinely tried to reach an agreement with UGL and if the proposed ballot agent, Democratic Outcomes Pty Ltd (CiVS), was eligible to conduct the ballot. The Deputy President also had to set a closing date for the ballot as per section 443(3)(c) of the Act.

After reviewing the material presented, including a declaration by Nicole Jane Frisken, Regional Organiser for the AMWU, the Deputy President concluded that the notification time had been met and that all requirements under section 443(1) of the Act were satisfied. The Deputy President determined that CiVS was an eligible agent under section 468A of the Act and authorized it to conduct the ballot. The closing date for voting was set at 6 February 2025, effectively 10 working days from the making of the Order, as requested in the application. The Deputy President also noted that a compulsory conciliation conference would be conducted, with another member of the Commission assigned to oversee it. The conference aimed to ensure meaningful negotiations between the parties.

The Deputy President issued an Order approving the AMWU's application for a protected action ballot order and set the closing date for the ballot. The matter was to be assigned to another member of the Commission to conduct the compulsory conciliation conference and issue any necessary directions to facilitate effective negotiations.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established