"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union v Asahi Beverages Pty Ltd

[2024] FWC 763

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
v

Asahi Beverages Pty Ltd

(B2024/250)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 26 MARCH 2024

Proposed protected action ballot of employees of Asahi Beverages 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 Asahi Beverages Pty Ltd (Asahi or Employer).

On 25 March 2024, the Commission was advised that Asahi, 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 Asahi, 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 10 May 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 PR772691.

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 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers' Union (AMWU), filed an application under section 437 of the Fair Work Act 2009 against Asahi Beverages Pty Ltd (Asahi) for a protected action ballot order. The AMWU sought to conduct a ballot of certain employees of Asahi to authorise protected action, presumably a strike, due to ongoing negotiations over an enterprise agreement. Asahi did not object to the application, allowing the Fair Work Commission to decide the matter based on the submitted documentation.

The legal issues in this case revolved around whether the AMWU had fulfilled the statutory requirements to conduct a protected action ballot, as set out in section 443 of the Fair Work Act. The Commission needed to determine if the union had genuinely attempted to reach an agreement with Asahi and if the notification period for the proposed agreement was met. Given the lack of objection from Asahi, the primary focus was on verifying that the AMWU had followed the necessary procedures and genuinely engaged in bargaining.

The Deputy President of the Fair Work Commission, Hampton, reviewed the declaration provided by Ms. Chloe Simmons on behalf of the AMWU, which detailed the union's efforts in negotiating with Asahi. The declaration outlined that the union had genuinely attempted to reach an agreement and had adhered to the notification requirements. The Commission was satisfied that all the statutory requirements were met, and therefore, it issued an order permitting the ballot to proceed. The voting period was set to close on 10 May 2024, providing the Australian Electoral Commission with sufficient time to conduct the ballot. The Commission also indicated that it would assign another member to conduct a compulsory conciliation conference under section 448A of the Act to facilitate further negotiations.

The Fair Work Commission granted the AMWU's application and authorised the protected action ballot to proceed. The ballot period was set to close on 10 May 2024, and the Australian Electoral Commission was tasked with conducting the ballot. Additionally, a compulsory conciliation conference was scheduled to be conducted by another member of the Commission to encourage meaningful negotiations between the AMWU and Asahi. This decision ensures that the employees' right to organise and engage in protected action is upheld, while also providing a structured pathway for resolving the underlying dispute over the enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established