"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Autonexus Pty Limited [2024] FWC 82

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 Autonexus Pty Limited (B2024/20) COMMISSIONER CONNOLLY MELBOURNE, 12 JANUARY 2024 Proposed protected action ballot of employees of AutoNexus Pty Limited [1] This is an application by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected ballot order (PABO) in relation to certain employees of Autonexus Pty Limited (Autonexus or Employer). [2] The application was lodged on Wednesday, 10 January 2024. [3] On Thursday, 11 January 2024, the matter was allocated to me for determination. [4] The group of employees to be balloted are those employees of AutoNexus Pty Limited who will be covered by the proposed enterprise agreement and are represented by the bargaining representative who is the Applicant for this protected action ballot order, except an employee who is bound by an individual agreement-based transitional instrument that has not passed its nominal expiry date on the day this ballot order is made, unless such an employee has made a conditional termination of that instrument. The Agreement is proposed as a replacement agreement for the AutoNexus Enterprise Agreement - Brunswick Fleet Conversions 2020. The nominal expiry date of which was 27 January 2024. [5] The proposed agreement is not a greenfields agreement, or a multi-enterprise agreement that is a cooperative workplace agreement. There has also been a notification time for the proposed agreement and the application and accompanying documentation for each is in order. The application and proposed order have also been provided by the AMWU to the Employer and the AEC. This meets the various requirements for the making of a PABO.1 [6] The application is supported by a statutory declaration of Mr Stephen Fodrocy, AMWU Industrial Officer. The declaration confirms the following: “I am advised by Lewis Farrugia, AMWU site organiser, that: [2024] FWC 82 DECISION -- 1 of 4 -- [2024] FWC 82 2 a. The respondent issued the notice of employee representational rights on or around 17 November 2023. b. b. The applicant has attempted but has been unable to serve its log of claims on the respondent. c. c. The applicant has emailed proposed dates to meet with the respondent in order to pursue its claims but has not received a reply from the respondent.” [7] The AMWU’s application seeks that the protected action ballot close 30 days from the making of order by the Commission. The ballot is to be conducted by the Australian Electoral Commission (AEC). The AEC is approved as an eligible protected ballot agent under s 468A of the Act and consequently is authorised to conduct the ballot. [8] On Thursday, 11 January 2024, the Commission was advised that the Employer objected to the application and sought that the matter be dismissed. Their submissions are summarised below: 1) That the nominal expiry date of the current agreement (which the proposed agreement is to replace) is 27 January 2024 and that this application should be dismissed because in making it the AMWU is, or has been organising industrial action in breach of s.417(1) of the Act; and, or in the alternative, 2) That the application should be dismissed because the AMWU has not been genuinely trying to reach an agreement as required by s.443(b) as the parties have yet to meet to commence bargaining for a new agreement. [9] On the same day, my Chambers issued Directions to all parties in this matter for a Hearing to be convened to consider and determine the application at 12:00pm on Friday, 12 January 2024, to be conducted by Video Conference on Microsoft Teams. Any additional submissions from the parties in respect of their positions were to be filed by no later than 10:00am on Friday, 12 January 2024. [10] At the Hearing, the Employer was represented by its National Human Resources Manager, Mr Brad Robinson and the AMWU was represented by Mr Stephen Fodrocy. [11] Both parties relied on their initial submissions, provided through an email chain which included the Respondent’s objections to the application and subsequently, the Applicant’s response to those objections. Both parties also made brief oral submissions in support of their respective positions at the Hearing. [12] The Applicant’s submissions were that the Respondent’s objections should be dismissed, firstly because s.438(2) of the Act explicitly provides that making an application under s.437 does not “constitute organising industrial action”. Further, that s.438(1) provides that an “application must not be made earlier than 30 days before the nominal expiry date of the enterprise agreement.” [13] With regarding to whether or not the AMWU “has been, as is, genuinely trying to reach an agreement”, the Applicant’s evidence is that this requirement has been met and that it has -- 2 of 4 -- [2024] FWC 82 3 no other intention or purpose in the making of this application other than the making of an enterprise agreement, as provided for by the Act. [14] In support of this position, the Applicant submits that since the middle of November 2023 the Applicant has been seeking meetings with employees and the company to discuss and pursue its intention of reaching a new enterprise agreement with the Respondent. Further, that meetings with the company have not occurred and that the Respondent’s willingness to meet, evident through them scheduling a tentative date towards the end of this month, has no bearing on the Applicant’s intent. [15] The Applicant has submitted materials to support their position and I am satisfied that the Applicant “is and, has been genuinely trying to reach an agreement”. [16] Further, I am not satisfied that the Respondent’s objections regarding the “organising of industrial action” and the “nominal expiry date” have any merit by virtue of the explicit provisions of s.438 as identified above. [17] Accordingly, there being no reasons as the why the Order should not be made based on the materials filed and submission made by the parties, I am satisfied that the full terms of the order provided by the AMWU meet the requirements of the Act and they have been reflected in the Order ultimately made by this Commission. Conclusions [18] On the basis of all the materials presented before me, including the declaration of Mr Stephen Fodrocy, and for the reasons set out above, I am satisfied that the AMWU has been, and is, genuinely trying to reach an agreement with Autonexus and that there is a notification time in relation to the proposed agreement and that all of the requirements of s.443(1) of the Act have been met. [19] The ballot is to be conducted by the Australian Electoral Commission. For the purposes of s.443(3)(c) of the Act, and following consultation with the parties, this Commission has determined that the date by which the voting in the protected action ballot is to close is no later than 30 working days from the date of this order. This also establishes the ballot period for the purposes of s.448A(2) of the Act. [20] An order has been separately issued in PR770156. [21] This matter will shortly be listed for a s.448A conference. An order requiring the bargaining representatives’ attendance at the conference will thereafter be issued. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations. -- 3 of 4 -- [2024] FWC 82 4 COMMISSIONER Appearances: Mr S Fodrocy, on behalf of the Applicant. Mr B Robinson, on behalf of the Respondent. Hearing details: 2024. Melbourne. 12 January. Printed by authority of the Commonwealth Government Printer <PR770157> 1 Act ss. 437, 438, 440 -- 4 of 4 --