“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union v v/Line Maintenance Pty Limited

[2023] FWC 2860

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

V/Line Maintenance Pty Limited

(B2023/1191)

DEPUTY PRESIDENT HAMPTON

SYDNEY, 1 NOVEMBER 2023

Proposed protected action ballot of employees of V/Line Maintenance Pty Limited

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 V/Line Maintenance Pty Limited (V/Line or Employer).

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 the same proposed agreement.[1]

On 31 October 2023, the Commission was advised, in effect, that V/Line 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 Andrew Bonello, AMWU Industrial Officer, 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 V/Line, 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 14 December 2023.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR767786.

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 (B2023/1190). To the extent that this matter involves any additional bargaining representatives, the Commission will also issue the Order requiring their 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] B2023/1190.

[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. The Applicant sought the ballot close date of 28 working days, which has been extended following advice to the parties to meet the requirements of the AEC.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) lodged an application under section 437 of the Fair Work Act 2009 (the Act) for an order permitting a ballot of certain employees of V/Line Maintenance Pty Limited (V/Line) for protected action in relation to a proposed enterprise agreement. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) also filed a similar application. The Fair Work Commission, presided over by Deputy President Hampton, determined the matter on the basis of the submissions and evidence presented, without holding a hearing, as V/Line did not object to the AMWU's application. The Commission found that the AMWU had met all the requirements for a protected action ballot under section 443 of the Act, including the notification time for the proposed agreement. The Deputy President issued an order allowing the ballot to be conducted by the Australian Electoral Commission, setting the closing date for voting as 14 December 2023.

The key legal issue before the Commission was whether the AMWU had satisfied the prerequisites for a protected action ballot as outlined in section 443 of the Act. The Commission needed to determine whether the AMWU had genuinely attempted to reach an agreement with V/Line and if all procedural requirements had been fulfilled. The AMWU's application was supported by a declaration from Andrew Bonello, an AMWU Industrial Officer, detailing the union's bargaining efforts and its commitment to reaching an agreement with V/Line. The Commission found that the AMWU had indeed met all the statutory requirements for a protected action ballot, including demonstrating a good-faith effort in negotiations and adhering to the notification period mandated by the Act.

Given the findings, the Deputy President issued an order permitting the AMWU to proceed with the ballot of V/Line employees, specifying the closing date for voting as 14 December 2023. This decision was made to accommodate the Australian Electoral Commission's need for 30 working days to conduct the ballot, extending from the initial 28 working days proposed by the AMWU. The Commission also noted that the matter would be assigned to another member for the compulsory conciliation conference, along with the related CEPU application. Additionally, the Commission would issue directions to ensure that all bargaining representatives attended the conference prepared for meaningful negotiations.

The Commission's final order allowed the AMWU to conduct the ballot of V/Line employees and set the closing date for voting as 14 December 2023. The decision also established the ballot period for the purposes of section 448A(2) of the Act. Furthermore, the Commission outlined the procedural steps for the upcoming compulsory conciliation conference and noted that it would issue further directions to ensure the parties' attendance and readiness for negotiations. This order aimed to facilitate the resolution of the proposed enterprise agreement dispute while ensuring that the employees' right to a protected action ballot was upheld.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established