Australian Workers' Union v Wilmar Sugar Pty Ltd T/A Sugar Australia

[2024] FWC 590

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 T/A Sugar Australia

(B2024/182)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 6 MARCH 2024

Proposed protected action ballot of employees of Wilmar Sugar 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 Wilmar Sugar Pty Ltd T/A Sugar Australia (Sugar Australia or Employer).

On 5 March 2024, the Commission was advised that Sugar Australia did not, in effect, 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 Robert Nguyen, 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 them, 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 the Vero Engagement & Voting Solutions Pty Ltd (Vero Voting). Vero Voting has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.[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 March 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR772085.
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 involved 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] Vero Engagement & Voting Solutions Pty Ltd T/A Vero Voting[2023] FWC 1531.

[2] This is, in effect, 13 working days from the date of the Order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union applied to the Fair Work Commission for an order to conduct a ballot of employees of Wilmar Sugar Pty Ltd T/A Sugar Australia to determine if they wish to take protected industrial action. The Commission was informed that Wilmar Sugar did not object to the application. The application was made under section 437 of the Fair Work Act 2009, and the matter was determined on the papers without a hearing. The application was successful on the basis that the union had genuinely attempted to reach agreement with the employer and met the requirements under the Act.

The legal issues for the Commission to decide included whether the union had met the notification time for the proposed agreement and whether all requirements under section 443 of the Act had been satisfied. The Commission found that the union had acted in accordance with the law and met all requirements. Vero Engagement & Voting Solutions Pty Ltd was approved to conduct the ballot.

The Deputy President of the Commission determined the closing date for voting to be 26 March 2024, which is 13 working days from the date of the order. The matter will be assigned to another member of the Commission for a compulsory conciliation conference. Further orders will be issued to ensure meaningful negotiations at the conference.

In summary, the Fair Work Commission granted the Australian Workers' Union's application for a protected action ballot order for the employees of Wilmar Sugar Pty Ltd T/A Sugar Australia. The Commission found that the union had met all legal requirements and determined the voting closing date. Another member of the Commission will conduct a compulsory conciliation conference to facilitate negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established