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

[2023] FWC 1452

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)

Viva Energy Refining Pty Ltd

(B2023/601)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 20 JUNE 2023

Proposed protected action ballot of employees of Viva Energy Refining 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) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Respondent, Viva Energy Refining Pty Ltd (Viva).

On 20 June 2023, the Commission was advised that the Respondent 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 Mr Raoul Wainwright, AMWU Industrial Officer, setting out the steps taken by it in bargaining with the Respondent and that it 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 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) and s.448A(2) of the Act, a ballot period of 30 working days from the date of the Order (20 June 2023) has been established by this Commission.[1]

An order has been separately issued in PR763349.

This matter will be assigned to another Member of the Commission to conduct the s.448A conference and this Member will issue the Order requiring 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] This is the minimum period required by the Australian Electoral Commission.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application from the Australian Manufacturing Workers' Union (AMWU), also known as the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, for a protected action ballot order. The application was against Viva Energy Refining Pty Ltd, a company that was the subject of a proposed protected action ballot of its employees. The application was made under section 437 of the Fair Work Act 2009 and was to be determined on the papers, as Viva Energy Refining Pty Ltd did not object to the application. The application was heard by Deputy President Hampton in Adelaide on 20 June 2023.

The legal issue before the Commission was whether the AMWU had satisfied the requirements under section 443 of the Act to hold a ballot for protected action. The AMWU had to demonstrate that it had been genuinely trying to reach an agreement with Viva Energy Refining Pty Ltd, that there was a notification time in relation to the proposed agreement, and that all the requirements of section 443(1) of the Act had been met. The AMWU submitted a declaration from Mr Raoul Wainwright, an AMWU Industrial Officer, which outlined the steps taken by the union in bargaining with the respondent and its efforts to reach an agreement.

The Commission was satisfied that the AMWU had satisfied all the requirements of section 443(1) of the Act, including that it had been genuinely trying to reach an agreement with Viva Energy Refining Pty Ltd. The Commission was also satisfied that there was a notification time in relation to the proposed agreement. The Commission established a ballot period of 30 working days from the date of the Order, which was the minimum period required by the Australian Electoral Commission. The ballot was to be conducted by the Australian Electoral Commission.

The Commission issued an order for a protected action ballot to be conducted and assigned the matter to another Member of the Commission to conduct the section 448A conference. The Commission also issued Directions to ensure that the parties attended the conference ready to conduct meaningful negotiations. The Commission did not make any final orders in this decision, as the matter was assigned to another Member of the Commission to conduct the section 448A conference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established