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

[2023] FWC 491

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

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

Fonterra Australia Pty Ltd

(B2023/175)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 FEBRUARY 2023

Proposed protected action ballot of employees of Fonterra Australia Pty Ltd

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Fonterra Australia Pty Ltd (the Respondent).

On 28 February 2023, my Associate was advised that the Respondent 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 Ms Chelsea Hill of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

The Applicant sought that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Vero Engagement & Voting Solutions Pty Ltd (Vero). I am satisfied that Vero is a fit and proper person to conduct the ballot. I am also satisfied that Vero is capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. Vero has agreed to be the protected action ballot agent and is bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

Therefore I appoint Vero as the protected action ballot agent.

An order has been separately issued in PR751247.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) who applied for a protected action ballot order concerning employees of Fonterra Australia Pty Ltd (the Respondent). The Applicant sought to conduct a ballot for a proposed protected action among the employees, as permitted under section 437 of the Fair Work Act 2009. The application was made on the basis that the union had been genuinely trying to reach an agreement with the employer and had fulfilled the notification time and other requirements stipulated in section 443(1) of the Act. The Respondent did not object to the application, allowing the matter to be determined on the papers without a hearing.

The legal issues before the Commission were whether the union had genuinely been attempting to negotiate in good faith with the employer and if the union had satisfied the notification time and other statutory requirements to proceed with the ballot. The Commission was also required to determine if the proposed ballot agent, Vero Engagement & Voting Solutions Pty Ltd, was fit and proper to conduct the ballot and could ensure the secrecy and security of the votes. Given that the Respondent did not oppose the application and the union's declaration indicated a genuine attempt at negotiation, the Commission found that the union had met the necessary conditions to proceed with the ballot.

In its decision, the Commission found that the union had indeed been genuinely trying to reach an agreement with the employer and had satisfied the notification time and other statutory requirements for proceeding with the ballot. Furthermore, Vero was deemed a fit and proper person to act as the ballot agent, capable of ensuring the secrecy and security of the votes and conducting the ballot expeditiously. Vero also agreed to comply with the Privacy Act 1998 regarding the handling of information relating to the ballot. Consequently, Vero was appointed as the ballot agent.

The Fair Work Commission issued an order appointing Vero Engagement & Voting Solutions Pty Ltd as the protected action ballot agent, allowing the union to proceed with the ballot for the proposed protected action among the employees of Fonterra Australia Pty Ltd. This order was issued separately under the file number PR751247.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established