Australian Workers' Union, The v Fonterra Ingredients Australia Pty Ltd T/A Fonterra Australia Ltd

[2022] FWC 2628

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union, The
v

Fonterra Ingredients Australia Pty Ltd T/A Fonterra Australia Ltd

(B2022/1470)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 29 SEPTEMBER 2022

Proposed protected action ballot of employees of Fonterra Ingredients Australia Pty Ltd.

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 Fonterra Ingredients Australia Pty Ltd (Respondent).

On 28 September 2022, my Associate was advised that the Respondent 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 Mr Anthony Beven 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 PR746334.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) applied to the Fair Work Commission (FWC) for a protected action ballot order in relation to certain employees of Fonterra Ingredients Australia Pty Ltd (Fonterra). The application was made under section 437 of the Fair Work Act 2009 (FW Act), seeking permission to conduct a ballot of the employees to determine if they support protected industrial action. The FWC was required to consider whether the AWU had satisfied the prerequisites for a ballot under the FW Act, including whether the union had genuinely attempted to reach an agreement with Fonterra and whether the notification period for the proposed agreement had elapsed.

The FWC considered the declaration of Mr Anthony Beven of the AWU, which detailed the union's bargaining efforts with Fonterra and its attempts to reach an agreement. The union had provided evidence of its genuine attempts to negotiate with Fonterra, and it was also noted that Fonterra did not object to the application. The FWC was satisfied that the AWU had met the requirements of section 443(1) of the FW Act, which sets out the conditions for a ballot order, and that the notification time for the proposed agreement had passed. Consequently, the FWC granted the AWU's application for a protected action ballot order.

The FWC issued an order under section 437 of the FW Act, allowing the AWU to conduct a ballot of the employees to determine their support for protected industrial action. The decision was made on the papers, without the need for a hearing, as Fonterra did not object to the application. This decision underscores the importance of the FWC in facilitating fair and effective bargaining processes between unions and employers, ensuring that employees' rights to engage in protected industrial action are upheld when the necessary conditions are met.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established