1 Fair Work Act 2009 s.437 - Application for a protected action ballot order Australian Workers' Union v Brockman Engineering Pty Ltd (B2024/1038) COMMISSIONER CONNOLLY MELBOURNE, 19 AUGUST 2024 Proposed protected action ballot of employees of Brockman Engineering Pty Ltd [1] This is an application by the Australian Workers’ Union (AWU 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 Brockman Engineering Pty Ltd (Brockman or Employer). [2] I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)i has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement. [3] The Application was lodged with the Commission on 15 August 2024. [4] On the same day, the matter was allocated to my chambers for determination. At the same time, I was also advised the Respondent objected to the Application. [5] The grounds of objection articulated by the Respondent are that the Applicant has not been genuinely trying to reach agreement, because the Applicant has not attended any of the bargaining meetings with the Respondent. [6] The AWU presses their application. Their position is that they represent 3 of 70 employees to be covered by the proposed agreement, that the AWU has and is genuinely trying to reach agreement with the Respondent having regard to their involvement in bargaining with and through the AMWU. They argue 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. Further, that the Commission can be satisfied on the evidence before it that the Applicant has been, and is, genuinely trying to reach agreement. [7] There is no dispute the application has been made under s.437 of the Act. [8] Considering the circumstances, I requested the parties advise my chambers by 4:00pm on Friday, 16 August 2024 if they sought to be heard further in relation to this matter. If so, I 2024 FWC 2203 DECISION 2024 FWC 2203 2 indicated the matter would be listed for hearing at 9:00am on Monday, 19 August 2024. If not, the matter would be determined on the material before the Commission. [9] Neither the Applicant nor the Respondent indicated they sought to be heard further in relation to this matter. The Respondent however, provided further evidence to my chambers indicating the AWU had been invited to but had not attended any bargaining meetings with the Respondent, including a meeting on 15 August 2024 that occurred after it lodged this application. The Applicant relies on the material before the Commission. Consideration [10] 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.” [11] The Applicant’s position is 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 where it has not attended any of the bargaining meetings to date. [12] The Applicant does not dispute the Respondent’s assertion that they have not had any officials present at the bargaining meetings convened between 3 June and 6 August 2024. They make no reference to the meeting of 15 August 2024. [13] Their position is that the AWU Organiser with responsibility for representing their 3 members seeking to be covered by the proposed agreement had regularly discussed the status and progress of bargaining with AMWU Organiser Mr Tony Hynds. Further, that Mr Hynds attends the bargaining meetings and represents their views and discussions have occurred before and after every bargaining meeting. The AWU also submits that Mr Patrick Wood has had the same discussions with AWU members proposed to be covered by the Agreement and that he has provided Mr Hynds with the AWU members’ feedback to be communicated in bargaining. [14] The AWU’s application includes a statutory declaration completed by Mr Wood. In this Form 34B declaration, Mr Wood’s evidence is that: “7. The AWU, acting jointly with other union bargaining representatives for the Proposed EA, has clearly articulated the claims of the Relevant Employees, including by serving Brockman with a log of claims. 2024 FWC 2203 3 8. The AWU, acting jointly with the other union bargaining representatives for the Proposed EA, has participated in bargaining meetings on the follow dates: (a) 3 June 2024; (b) 14 June 2024; (c) 21 June 2024; (d) 28 June 2024; (e) 11 July 2024; (f) 18 July 2024; (g) 30 July 2024; and (h) 6 August 2024. 9. The AWU has given genuine consideration to Brockmans’s proposals. 10. The AWU, acting jointly with the other union bargaining representatives for the Proposed EA, has provided considered responses to Brockman’s proposals. 11. The AWU is not seeking to include content in the Proposed EA that is unlawful or that is not about a permitted matter under the Fair Work Act 2009 (Cth). 12. Despite the AWU’s best efforts, we have yet to reach agreement with Brockman on the terms of the Proposed EA.” [15] I have considered these submissions in line with the relevant authorities of the Commission. [16] In JJ Richards & Sons Pty Ltd v Transport Workers Union of Australiaii considering genuine agreement, the Full Bench observed at [62] and [63]: “[62] In the ordinary course of events where an applicant for a protected ballot order calls (acceptable) evidence that their intention, object or purpose is to reach an enterprise agreement under the FW Act, what may be described as an evidentiary onus shifts to the party or parties opposing the application to demonstrate why that evidence ought not be accepted sufficient to shift the evidentiary onus back to the applicant. [63] In circumstances where an applicant for a protected ballot order calls (acceptable) evidence that their intention, object or purpose is to reach an enterprise agreement under the FW Act a finding that the applicant was not “genuinely trying to reach an [enterprise] agreement” within the meaning of s.443(1)(b) will necessarily involve accepting evidence establishing that the applicant had some other, extraneous purpose in seeking the ballot. Indeed, when there is evidence from an applicant for a protected action ballot 2024 FWC 2203 4 order that they have been and are “genuinely trying to reach an [enterprise] agreement” under the FW Act, it is difficult to conceive of circumstances where it could properly be found they were not...” [17] Mr Wood’s evidence is uncontested. In the present circumstances, this evidence in the form of the statutory declaration confirms that the Applicant has been taking steps to communicate its claims for the proposed agreement at bargaining meetings, occurring between 3 June and 6 August 2024. Further, that at these meetings the Applicant took steps to negotiate with the Respondent in pursuit of the items in its members’ log of claims provided to the Respondent on 3 June 2024. They submit that despite best endeavours to reach an agreement, the parties remain apart and the AWU has been, and is, genuinely trying to reach an agreement with the Respondent. [18] On the material before me, I am satisfied that the AWU has been, and is, genuinely trying reach an agreement with the Respondent and that there is a notification time in relation to the proposed agreement and all the requirements in s.443(1) of the Act have been met. [19] The Application seeks the protected action ballot close 30 days from the date of an order by the Commission. The ballot is to be conducted by the Australian Electoral Commission (AEC). [20] 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 30 September 2024.iii This also establishes the ballot period for the purpose of s.448A(2) of the Act. [21] An Order has been separately issued in PR778431. [22] This matter will now proceed to a s.448A compulsory conciliation conference along with the related matter (B2024 1028). 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 <PR778430> 2024 FWC 2203 5 i B2024/1028. ii [2010] FWAFB 9963. iii This is, in effect, 30 working days from the making of the Order as required by the AEC.