United Workers' Union v General Motors Australia and New Zealand Pty Ltd

[2024] FWC 2944

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers’ Union
v

General Motors Australia and New Zealand Pty Ltd

(B2024/1391)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 24 OCTOBER 2024

Proposed protected action ballot of employees of General Motors Australia and New Zealand Pty Ltd

This is an application by the United Workers’ Union (UWU 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 General Motors Australia and New Zealand Pty Ltd (GM or Employer).

I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)[1] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 23 October 2024, the Commission was advised that the Employer, in effect, 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 Olivia Blackney, Organiser, setting out the steps taken by the UWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with GM, 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 6 December 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 PR780529.

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. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement 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] B2024/1381.

[2] This is, in effect, 30 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) considered an application by the United Workers' Union (UWU) for a protected action ballot order concerning employees of General Motors Australia and New Zealand Pty Ltd (GM). The UWU sought to conduct a ballot to determine whether the employees would engage in protected industrial action, in accordance with Section 437 of the Fair Work Act 2009. GM did not oppose the application, and the FWC decided to proceed with the matter based on the submitted documentation. Another union, the Australian Manufacturing Workers' Union (AMWU), had also applied for a protected action ballot concerning the same proposed enterprise agreement, though this was a separate application.

The primary legal issue before the FWC was whether the UWU had satisfied the requirements of Section 443(1) of the Act, which stipulates the conditions under which a union may apply for a protected action ballot order. Specifically, the FWC had to determine whether the UWU had genuinely attempted to reach an agreement with GM and if there was a notification time in relation to the proposed enterprise agreement. The UWU provided a declaration from Olivia Blackney, the union's Organiser, which outlined the steps taken during the bargaining process and affirmed the union's genuine efforts to reach an agreement with GM.

The FWC found that the UWU had met all the requirements for a protected action ballot order. Based on the evidence presented, the Deputy President concluded that the UWU had genuinely attempted to reach an agreement with GM and that there was a notification time in relation to the proposed agreement. Consequently, the FWC issued an order granting the UWU's application for a protected action ballot, specifying that the ballot would be conducted by the Australian Electoral Commission. The voting period was set to close on 6 December 2024, which aligns with the 30 working days requested in the application.

The FWC also determined that the matter would be assigned to another Member to conduct a compulsory conciliation conference, in accordance with Section 448A of the Act. This Member would issue an order requiring the attendance of all bargaining representatives at the conference and would likely issue directions to ensure meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established