Australian Workers' Union v GrainCorp Operations Limited

[2024] FWC 2348

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

GrainCorp Operations Limited

(B2024/1119)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 2 SEPTEMBER 2024

Proposed protected action ballot of employees of GrainCorp Operations Limited

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 GrainCorp Operations Limited (GrainCorp or Employer).

On 2 September 2024, the Commission was advised that the Employer, in effect, 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 Shenae Murray, Organiser, setting out the steps taken by the AWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with GrainCorp, I am satisfied 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.

The ballot is to be conducted by Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

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 20 September 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR778847.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives for 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.

DEPUTY PRESIDENT

[1] This is, in effect, 14 working days from the date of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) has applied to the Fair Work Commission for a protected action ballot order concerning employees of GrainCorp Operations Limited. This application was made under section 437 of the Fair Work Act 2009. The AWU sought the order to enable a ballot for protected action by the employees, presumably to authorise industrial action if negotiations with the employer failed to result in a satisfactory agreement. GrainCorp did not object to the application, effectively conceding to the need for the ballot.

The legal issues before the Commission involved determining whether the AWU had met the statutory requirements to seek a protected action ballot order. This included verifying that the union had genuinely attempted to reach an agreement with GrainCorp and that all procedural requirements of the Fair Work Act were satisfied. The Commission had to consider the declaration by Shenae Murray, the AWU Organiser, which outlined the union's bargaining efforts and commitment to reaching an agreement. Additionally, the Commission had to set a closing date for the ballot to ensure it was conducted within the legal timeframe.

The Deputy President concluded that the AWU had met all the necessary requirements to warrant a ballot. The declaration provided by Shenae Murray was deemed sufficient evidence of the union's genuine bargaining efforts. Consequently, the Commission was satisfied that there was a notification period for the proposed agreement, and all statutory conditions had been fulfilled. The Deputy President also set the closing date for voting in the ballot as 20 September 2024, aligning with the period sought by the AWU. Furthermore, the Commission assigned the matter to another Member for a compulsory conciliation conference, ensuring that both parties would engage in meaningful negotiations.

In conclusion, the Commission issued an order for the ballot to proceed, specifying the closing date for voting and assigning the matter for a compulsory conciliation conference. The AWU's application was successful, allowing the ballot to move forward under the protection of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established