Australian Workers' Union v Wilmar Sugar Pty Ltd

[2024] FWC 894

[2024] FWC 894

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Wilmar Sugar Pty Ltd

(B2024/412)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 9 APRIL 2024

Proposed protected action ballot of employees of Wilmar Sugar Pty Ltd

1. This is an application by the Australian Worker’ 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 Wilmar Sugar Pty Ltd (Wilmar or Employer). 

1. I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) have each also made a separate application for a protected action ballot order in relation to the same proposed agreement.[1]

1. On 5 April 2024, the Commission was advised that Wilmar did not, in effect, object to the Application as amended to reflect certain accommodations reached between the parties.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the declaration of Darren Lee, 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 Wilmar, 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.

1. The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[2] and consequently is authorised to conduct the ballot.

1. Pursuant to section 443(5) of the Act, I am satisfied that there are relevant exceptional circumstances justifying the period of written notice referred to in section 414(2)(b) of the Act being longer than three (3) working days. By consent, the Commission has specified four (4) working days as the minimum period of written notice required in respect of industrial action taken by employees arising from questions 1, 2, 3, 4, 5 and 6. The standard three working day minimum notice period will apply to all other questions.

1. 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 26 April 2024.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. The Order issued by the Commission empowers CiVS as the ballot agent to determine the commencement date of the ballot in accordance with s.451(2)(a) of the Act and the standard practice for such matters.

1. An Order has been separately issued in PR773270.

1. This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matters (B2024/411, and B2024/413). To the extent that this matter involves any additional bargaining representatives, the Commission will also issue the Order requiring their attendance 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] B2024/411 and B2024/413.

[2] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.

[3] This is, in effect, twelve (12) working days from the date of the Order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

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