“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union v Visy Board Pty Ltd, Visy Board Pty Ltd (Visy Board) and Visy Paper Pty Ltd in..

[2023] FWC 3263

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

Visy Board Pty Ltd, Visy Board Pty Ltd (Visy Board) and Visy Paper Pty Ltd In Its Capacity as the Trustee for The Southern Paper Converters Trust (Visy Paper)

(B2023/1336)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 6 DECEMBER 2023

Proposed protected action ballot of employees of Visy Board Pty Ltd & Visy Paper Pty Ltd in its Capacity as the Trustee for the Southern Paper Converters Trust

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 Visy Board Pty Ltd, Visy Paper Pty Ltd in its capacity as the Trustee for the Southern Paper Converters Trust (Visy Paper or Employer).

I note that the Australian Workers’ Union (AWU) have made a separate application for a protected action ballot order in relation to the same proposed agreement.[1]

On 6 December 2023, the Commission was advised, in effect, that Visy Paper 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 Andrew Bonnello 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 Visy Paper, 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 22 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 PR769085.

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 (B2023/1335). 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] B2023/1335.

[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 Australian Manufacturing Workers’ Union (AMWU) applied to the Fair Work Commission for a protected action ballot order concerning employees of Visy Board Pty Ltd and Visy Paper Pty Ltd in its capacity as the trustee for the Southern Paper Converters Trust. This application was made under section 437 of the Fair Work Act 2009. The AMWU sought to ballot employees regarding a proposed agreement that had been the subject of negotiations with the employers, Visy Board and Visy Paper. The application was lodged in the context of ongoing negotiations where the AMWU claimed to have been genuinely trying to reach an agreement with the employers.

The key legal issues before the Deputy President were whether the notification time for the proposed agreement had been met and whether all requirements under section 443(1) of the Act were satisfied. The Deputy President examined the declaration by Mr. Andrew Bonnello on behalf of the AMWU, which outlined the steps taken in bargaining with the employers and the union’s genuine efforts to reach an agreement. The Deputy President found that the notification time had been met and that all conditions under section 443(1) of the Act were fulfilled.

The Deputy President granted the AMWU's application for a protected action ballot order, specifying that the ballot would be conducted by the Australian Electoral Commission. The Deputy President set the closing date for voting as 22 January 2024, which aligns with the 30 working days required by the Australian Electoral Commission to conduct a ballot. Additionally, this date establishes the ballot period for the purposes of section 448A(2) of the Act. The matter will proceed to a compulsory conciliation conference, to be conducted by another Member of the Commission, where the parties will be required to engage in meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established