Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Arnott's Biscuits Limited Summary

[2024] FWC 619

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

Arnott's Biscuits Limited

(B2024/198)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 11 MARCH 2024

Proposed protected action ballot of employees of Arnott's Biscuits Limited

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU 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 Arnott’s Biscuits Limited (Arnott’s or Employer).

On 8 March 2024, the Commission was advised that Arnott’s, 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 Scott Reichman on behalf of the CEPU, setting out the steps taken by the CEPU in bargaining with Arnott’s 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 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[1]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 25 March 2024. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR772184.

I have reordered the clauses of the Applicant’s proposed order to align with the Commission’s standard drafting style.

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made an application to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order regarding employees of Arnott's Biscuits Limited. Arnott's Biscuits Limited did not object to the application, and thus, the matter was decided on the papers without a hearing. The CEPU sought the order on the basis that it had been genuinely attempting to reach an agreement with Arnott's and had followed the notification period stipulated in section 443(1) of the Act. The ballot was to be conducted by Democratic Outcomes Pty Ltd T/A CiVS (CiVS), which was approved as an eligible agent under section 468A of the Act.

The court needed to decide whether the CEPU had met the requirements to hold a protected action ballot under the Fair Work Act. This included confirming that the union had genuinely tried to reach an agreement with Arnott's Biscuits Limited, and that the notification period for the ballot was properly observed. Additionally, the court had to determine if CiVS was an eligible agent to conduct the ballot, and set a closing date for the ballot in line with section 443(3)(c) of the Act. Furthermore, the court had to decide on the commencement of the compulsory conciliation conference under section 448A of the Act, which would require attendance of all bargaining representatives and ensure meaningful negotiations.

The Deputy President of the Fair Work Commission, Wright, concluded that the CEPU had satisfied all the requirements to hold a protected action ballot. The union had genuinely tried to reach an agreement with Arnott's, and the notification period was properly followed. CiVS was deemed an eligible agent to conduct the ballot. The closing date for voting was set to 25 March 2024, and the matter would be assigned to another Member of the Commission for the compulsory conciliation conference. The court issued an order to align with the Commission's standard drafting style and required the attendance of all bargaining representatives at the conference, ensuring readiness for meaningful negotiations.

The Fair Work Commission issued an order granting the CEPU's application for a protected action ballot order. The ballot period was set to close on 25 March 2024. The matter was assigned to another Member of the Commission for the compulsory conciliation conference, with an order requiring the attendance of all bargaining representatives and issuing directions to ensure the parties were ready for meaningful negotiations. This decision provided clarity and direction for the parties involved in the proposed enterprise agreement.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Arnott's Biscuits Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established