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

[2020] FWC 5840

[2020] FWC 5840

FAIR WORK COMMISSION

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
(B2020/678)

"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 and Komatsu Marketing Support Australia Pty Ltd
(B2020/675)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 2 NOVEMBER 2020

Application B2020/678 to revoke order made in B2020/654

Application B2020/675 for proposed protected action ballot of employees of Komatsu Australia Pty Ltd and Komatsu Marketing Support Australia Pty Ltd

[1] This decision concerns an application jointly made on 30 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) (the joint 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 and Komatsu Marketing Support Australia Pty Ltd (jointly, Komatsu or the Respondent).

[2] This decision also concerns an application by the joint Applicant’s to revoke a Protected Action Ballot Order issued in relation to one of the Respondents.

[3] I deal with both applications concurrently.

Application B2020/678

[4] An application for a protected action ballot order was filed by the joint Applicants against Komatsu Australia Pty Ltd (and not against Komatsu Marketing Support Australia Pty Ltd) on 21 October 2020. Komatsu Australia Pty Ltd did not object to the application. A Decision 1 and Protected Action Ballot Order2 were issued on 23 October 2020.

[5] The joint Applicants seek revocation of that order on the ground that their application and the Commission’s order singularly concerned employees of Komatsu Australia Pty Ltd and did not include employees of Komatsu Marketing Support Australia Pty Ltd.

[6] A Form 36 - Application for revocation of a protected action ballot order was filed by the joint Applicants on 2 November 2020.

[7] Section 448 of the FW Act provides:

“(1) An applicant for a protected action ballot order may apply to the FWC, at any time before voting in the protected action ballot closes, to revoke the order.

(2) If an application to revoke a protected action ballot order is made, the FWC must revoke the order.”

[8] The preconditions for making a revocation order are met. Pursuant to section 448 of the FW Act, the Protected Action Ballot Order [PR723800] will be revoked. An Order to this effect will be published in conjunction with this Decision.

Application B2020/675

[9] The application B2020/675 for a protected action ballot order in relation to certain employees of Komatsu was served on the Respondent and the Australian Electoral Commission on 30 October 2020. The Respondent was provided an opportunity to indicate whether they had any objection to the application. On 2 November 2020 Komatsu advised my Chambers that it did not object to the application and that it did not seek to be heard on the application. Thus, there is no objection to the application as lodged.

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

[11] On the basis of the material before me, including the statutory declaration of Gary Carozzi of the AMWU declared on 30 October 2020 and the statutory declaration of Mark Mocerino of the CEPU declared on 30 October 2020 setting out the steps taken by the joint Applicants 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.

[12] The draft order supplied by the joint Applicants seeks 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 to be issued will reflect this protocol.

[13] I am also satisfied that the joint Applicants have given notice in accordance with section 440 of the FW Act.

[14] An Order 3 in conformity with the FW Act is being issued in conjunction with the publication of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR724165>

 1   [2020] FWC 5659

 2   PR723800

 3   PR724172