“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union v Saputo Dairy Australia Pty Ltd T/A Saputo Dairy Summary

[2023] FWC 3290

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union
v

Saputo Dairy Australia Pty Ltd T/A Saputo Dairy

(B2023/1351)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 12 DECEMBER 2023

Proposed protected action ballot of employees of Saputo Dairy Australia Pty Ltd Trading As Saputo Dairy

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 Saputo Dairy Australia Pty Ltd T/A Saputo Dairy (Saputo Dairy or Employer).

On 8 December 2023, the Commission was advised, in effect, that Saputo Dairy did not object to the Application.

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

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 Michael Wickham 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 Saputo Dairy, 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.

Following consultation with the parties, one of the ballot questions was removed by consent.

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 29 January 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR769201.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter (B2023/1356). The Member will issue the Order requiring the attendance of all bargaining representatives 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] B2023/1356.

[2] 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 (AMWU), also known as the Australian Manufacturing Workers' Union, applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for an order to conduct a protected action ballot. This was in relation to certain employees of Saputo Dairy Australia Pty Ltd, trading as Saputo Dairy. Saputo Dairy did not object to the application. The AMWU sought to conduct the ballot in relation to a proposed agreement with the employer, having engaged in bargaining and genuinely attempted to reach an agreement. The AMWU's application was made concurrently with an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a similar ballot in relation to the same proposed agreement.

The legal issue before the Deputy President was whether the requirements of section 443 of the Fair Work Act were met, allowing for the conduct of the ballot. The Deputy President considered the declaration by Mr Michael Wickham on behalf of the AMWU, which outlined the bargaining process and the union's efforts to reach an agreement with Saputo Dairy. The Deputy President was satisfied that the notification period for the proposed agreement had been met and that all requirements under section 443(1) of the Act had been fulfilled. The ballot question was adjusted by consent, removing one of the proposed questions.

The Deputy President granted the order, determining that the ballot would be conducted by the Australian Electoral Commission. The Deputy President set the closing date for voting as 29 January 2024, which was 30 working days from the date of the order, in line with the requirements of the Australian Electoral Commission. The matter was assigned to another Member of the Commission to conduct a compulsory conciliation conference under section 448A of the Act. An order was issued requiring the attendance of all bargaining representatives at the conference, with likely directions to ensure meaningful negotiations took place.

This decision highlights the procedural requirements for conducting a protected action ballot under the Fair Work Act and the role of the Fair Work Commission in facilitating the process. The Deputy President's decision was based on the evidence provided by the AMWU and the absence of objection from Saputo Dairy. The granting of the order allowed the AMWU to proceed with the ballot while ensuring that all legal requirements were met.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union v Saputo Dairy Australia Pty Ltd T/A Saputo Dairy

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established