Australian Workers' Union v OZPAK Pty Ltd

[2024] FWC 1578

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

OZPAK Pty Ltd

(B2024/769)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 18 JUNE 2024

Proposed protected action ballot of employees of OZPAK Pty Ltd

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 OZPAK Pty Ltd (OZPAK or Employer).

On 17 June 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 James Newbold, 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 it, 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.

I observe that the group of employees to be balloted as set out in the Order was clarified to reflect s.437(5) of the Act and the apparent intention of the application.

The ballot is to be conducted by the Australian Electoral Commission (AEC).

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 30 July 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 PR776117.

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, 30 working days from the making of the Order as required by the AEC and sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) applied to the Fair Work Commission for a protected action ballot order regarding employees of OZPAK Pty Ltd. This application was made under section 437 of the Fair Work Act 2009. The employer, OZPAK Pty Ltd, did not object to the application, allowing the matter to be determined on the submitted documents without a hearing. The AWU submitted a declaration from James Newbold, an Organiser, detailing the union's efforts in bargaining with the employer and its genuine attempts to reach an agreement. The union's application included a clarification of the group of employees to be balloted, in line with section 437(5) of the Act.

The legal issues in this case primarily revolved around whether the AWU had met the requirements under section 443(1) of the Fair Work Act to be granted a protected action ballot order. This included verifying that there was a notification time in relation to the proposed agreement and that the union had genuinely attempted to reach an agreement with the employer. Additionally, the court needed to determine the appropriate date by which voting would close, ensuring it complied with section 443(3)(c) of the Act. The Australian Electoral Commission (AEC) was designated to conduct the ballot, with the court setting the closing date for voting as 30 July 2024.

The Fair Work Commission, represented by Deputy President Hampton, was satisfied that the AWU had met all the requirements under section 443(1) of the Act. The union had indeed provided evidence of its genuine bargaining efforts and the existence of a notification time. Consequently, the Commission granted the application for a protected action ballot order. The Deputy President also determined the ballot period, aligning with the requirements set forth in section 448A(2) of the Act. This decision ensures that the ballot is conducted within the specified timeframe, facilitating a smooth process for the employees involved. An Order has been issued to conduct a compulsory conciliation conference, with another member of the Commission responsible for overseeing the negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established