Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Woolworths Format Development Pty Limited

[2025] FWC 177

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

Woolworths Format Development Pty Limited

(B2025/110)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 20 JANUARY 2025

Proposed protected action ballot of employees of Woolworths Format Development Pty 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 Woolworths Format Development Pty Limited (Woolworths or Employer).

On 20 January 2025, the Commission was advised that the Employer did not object to the Application following discussion between the parties. The parties communicated a consent position and I have amended the application to reflect that position. Accordingly, I have decided that the matter will be determined on the papers without the need for a hearing.

On the basis of the material before me, including the declaration of Daniel Gillett, Organiser, setting out the steps taken by the CEPU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Woolworths, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act 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 5 February 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR783447.

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, 10 working days from the anticipated commencement of the ballot and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) applied for a protected action ballot order against Woolworths Format Development Pty Limited. The application was made under section 437 of the Fair Work Act 2009. The union sought to conduct a ballot for potential industrial action by its members, who were employees of Woolworths. Woolworths did not object to the application following discussions between the parties, and the application proceeded without a hearing.

The primary legal issue for the Commission was whether the union had met the statutory requirements for conducting a protected action ballot. This involved assessing whether the union had genuinely been attempting to reach an agreement with Woolworths and whether all procedural prerequisites, including notification time and the use of an approved ballot agent, were satisfied. The Commission reviewed the declaration by Daniel Gillett, the union's Organiser, which detailed the union's bargaining efforts and adherence to the Act's provisions. The Commission also confirmed the approval of Democratic Outcomes Pty Ltd as a ballot agent and set the closing date for voting.

Upon reviewing the application and supporting documents, Deputy President Hampton concluded that the union had fulfilled all necessary requirements for a protected action ballot. The Commission determined that the union had genuinely attempted to reach an agreement and that the stipulated conditions were met. Consequently, the Commission issued an order approving the ballot and setting the closing date for voting as 5 February 2025. Additionally, the Commission scheduled a compulsory conciliation conference to facilitate negotiations between the parties and directed that all bargaining representatives attend.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established