DECISION

Fair Work Act 2009
Section 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) - Western Australian Branch; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Komatsu Australia Pty Ltd
(B2020/654)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 23 OCTOBER 2020

Proposed protected action ballot of employees of Komatsu Australia Pty Ltd

[1] This decision concerns an application jointly lodged on 21 October 2020 by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) - Western Australian Branch and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (jointly, the Applicants) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Komatsu Australia Pty Ltd (Komatsu or the Respondent).

[2] The Respondent was provided an opportunity to indicate whether they had any objection to the application. On 23 October 2020 Komatsu advised my Chambers that they did not seek to be heard on the application. Thus, there is no objection to the application as lodged.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Gary Carozzi of the AMWU declared on 20 October 2020 and the statutory declaration of Mark Mocerino of the CEPU declared on 20 October 2020 setting out the steps taken by the Applicant in bargaining with the Respondent and confirming 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 the requirements in section 443(1) of the FW Act have been met.

[5] The draft order supplied by the Applicants set a ballot period of “twenty working days from the date of the order from the Fair Work Commission.” Current advice from the ballot agent (the Australian Electoral Commission) to the Commission is that a ballot period of thirty (30) working days is required. The Order issued in this application will reflect this protocol.

[6] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[7] An Order 1 in conformity with the FW Act is being issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR723800

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia initiated proceedings against Komatsu Australia Pty Ltd. The union sought approval for a proposed protected action ballot of employees of Komatsu Australia Pty Ltd. The employees were concerned about changes to their working conditions and sought to gauge support for potential industrial action.

The key legal issue for the Commission to determine was whether the union's proposed ballot complied with the relevant provisions of the Fair Work Act 2009. Specifically, the Commission had to assess whether the union had provided the requisite notice to the employer and whether the ballot's purpose was genuinely related to the employees' working conditions or remuneration.

The Fair Work Commission found that the union's proposed ballot was compliant with the statutory requirements. The Commission was satisfied that the union had provided the necessary notice to the employer and that the ballot's purpose was directly related to the employees' working conditions. The Commission emphasised the importance of ensuring that employees have the opportunity to be heard on matters affecting their employment and recognised the union's role in facilitating this process. Consequently, the Commission approved the union's proposed ballot.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Komatsu Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established