Australian Workers' Union v GrainCorp Operations Limited Summary

[2024] FWC 2808

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

GrainCorp Operations Limited

(B2024/1316)

DEPUTY PRESIDENT HAMPTON

SYDNEY, 9 OCTOBER 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 9 October 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 Serge Rindo, 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 23 October 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 PR780072.

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 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.

DEPUTY PRESIDENT

[1] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was presented with an application by the Australian Workers' Union (AWU) under section 437 of the Fair Work Act 2009, seeking an order for a protected action ballot in relation to certain employees of GrainCorp Operations Limited (GrainCorp). GrainCorp did not object to the application, allowing the matter to be determined on the basis of the provided documents without a hearing. The AWU sought to conduct a ballot to determine if its members would support protected industrial action, following unsuccessful negotiations for a new enterprise agreement. The AWU's declaration, submitted by Serge Rindo, detailed the bargaining process and the union's efforts to reach an agreement with GrainCorp.

The primary legal issue before the FWC was whether the conditions set out in section 443 of the Act for a protected action ballot order were satisfied. These conditions included verifying that the AWU had genuinely attempted to reach an agreement and that there was a notification period in relation to the proposed agreement. The FWC reviewed the declaration and other materials to assess whether the AWU had met the statutory requirements and if the proposed ballot agent, Democratic Outcomes Pty Ltd (CiVS), was eligible under section 468A of the Act. The AWU's declaration, along with the lack of objection from GrainCorp, provided sufficient evidence that the statutory criteria were met.

After reviewing the application and associated documents, Deputy President Hampton concluded that all requirements for a protected action ballot order were satisfied. The FWC was satisfied that the AWU had genuinely attempted to negotiate with GrainCorp and that a notification period was in effect. Additionally, CiVS was confirmed as an eligible ballot agent. Consequently, the FWC issued an order approving the ballot and specified that voting would close on 23 October 2024. The order also noted the assignment of the matter to another FWC member for a compulsory conciliation conference under section 448A of the Act. This conference would require the attendance of all bargaining representatives to facilitate further negotiations.

In summary, the FWC granted the AWU's application for a protected action ballot order, setting the closing date for voting at 23 October 2024. The decision was based on the evidence provided by the AWU and the absence of objections from GrainCorp. The FWC also directed that a compulsory conciliation conference would be held to encourage continued negotiations between the parties.

Australian Workers' Union v GrainCorp Operations Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established