Australian Workers' Union, The v BDD Milk Pty Ltd T/A Bega

[2023] FWC 24

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union, The
v

BDD Milk Pty Ltd T/A Bega

(B2023/1)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 5 JANUARY 2023

Proposed protected action ballot of employees of BDD Milk Pty Ltd Trading as Bega

This is an application by the Australian Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of BDD Milk Pty Ltd (Respondent).

While the Respondent advised my Associate of a few issues with the application documents on 4 January 2023, these have since been resolved and the Respondent has confirmed it does 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 Mr Mundey of the Applicant setting out the steps taken by it in bargaining with the Respondent and 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 s.443(1) of the Act have been met.

An order has been separately issued in PR749401

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of BDD Milk Pty Ltd, trading as Bega. The application was made to facilitate a proposed protected action ballot of the employees. The Respondent initially raised some issues with the application documents, but these were subsequently resolved, and the Respondent confirmed it did not object to the application. The Deputy President determined the matter on the basis of the submitted documents without the need for a hearing.

The key legal issues for the court to decide were whether the notification time for the proposed agreement was appropriate and whether the requirements under section 443(1) of the Fair Work Act 2009 were met. The Applicant provided a declaration from Mr Mundey, which outlined the steps taken during bargaining with the Respondent and confirmed that the Applicant had genuinely tried to reach an agreement. The Deputy President needed to consider these submissions to determine if the application met the legal criteria for a protected action ballot.

In deciding the matter, the Deputy President examined the declaration from Mr Mundey and the other materials submitted. The Deputy President was satisfied that the notification time for the proposed agreement was appropriate and that the requirements under section 443(1) of the Fair Work Act 2009 had been met. Consequently, the Deputy President issued an order for a protected action ballot, allowing the Australian Workers' Union to proceed with the ballot as proposed.

Separately, an order was issued in PR749401. The decision was printed by authority of the Commonwealth Government Printer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established