1 Fair Work Act 2009 s.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) v Brockmans Engineering Pty Ltd (B2024/1028) COMMISSIONER CONNOLLY MELBOURNE, 14 AUGUST 2024 Proposed protected action ballot of employees of Brockmans Engineering Pty Ltd [1] 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 Brockmans Engineering Pty Ltd (Brockmans or Employer). [2] The Application was lodged with the Commission on 13 August 2024. [3] On the same day, the matter was allocated to my Chambers for determination, and I was advised the Respondent objected to the Application. [4] The grounds of objection articulated by the Respondent are that the Applicant has not been genuinely trying to reach agreement, the Applicant’s log of claims was so far removed from industry conditions and that if the Respondent were to agree to these claims it would be uncompetitive in the market and its business position would rapidly fail. [5] The AMWU presses their application. Their position is that the Respondent has not identified any relevant grounds which give the objection merit. They submit that s.443 of the Act requires the Commission to make a protected action ballot order if an application has been made under s.437 and the Commission is satisfied that the Applicant has been, and is, genuinely trying to reach agreement. [6] There is no dispute the application has been made under s.437 of the Act. [7] Considering all the material filed by both the Applicant and the Respondent, I have decided to determine the matter on the papers without holding a hearing, as requested by the Applicant. Consideration 2024 FWC 2162 DECISION 2024 FWC 2162 2 [8] As the Applicant has identified s.443 of the Act sets out when the Commission must make a protected ballot order as follows: “443 When the FWC must make a protected ballot order (1) The FWC must make a protected ballot order in relation to a proposed enterprise agreement if: (a) an application has been made under 437; and (b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.” [9] The Applicant’s position is that these conditions have been met and the Commission must make an order. The Respondent argues that the Applicant cannot be said to be genuinely trying to reach agreement in circumstances when its claims are beyond industry standard and would make the business uncompetitive. [10] The Respondent has not provided any evidence to support its assertions. The Applicant submits it has an entitlement to bargain for terms and conditions for its members working with the Respondent so long as they are permitted matters. Bargaining does not require it to present claims the Respondent agrees with and that, notably, the good faith bargaining requirements at s.228 of the Act do not require a bargaining representative to make concessions during bargaining. [11] I have considered these submissions. [12] The Applicant’s position is supported by a statutory declaration of Mr Stephen Fodrocy. This declaration confirms that 8 bargaining meetings have occurred between 3 June and 6 August 2024. At these meetings, the Applicant negotiated with the Respondent in pursuit of the items in its members’ log of claims provided to the Respondent on 3 June 2024. The Applicant submits that despite best endeavours to reach an agreement the parties remain apart on a number of key issues and the AMWU has been, and is, genuinely trying to reach an agreement with the Respondent. [13] On the basis of the material before me, I am satisfied that the AMWU has been, and is, genuinely trying reach an agreement with the Respondent, 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. [14] The Applicant seeks the protected action ballot to close 30 days from the date of an order by the FWC. The ballot is to be conducted by the Australian Electoral Commission (AEC). 2024 FWC 2162 3 [15] 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 25 September 2024.1 This also establishes the ballot period for the purpose of s.448A(2) of the Act. [16] An Order has been separately issued in PR778316. [17] This matter will now proceed to a s.448A compulsory conciliation conference. My Chambers 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. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR778315> 1 This is, in effect, 30 working days from the making of the Order as required by the AEC.