Retail and Fast Food Workers Union Incorporated v Apple Pty Ltd T/A Apple

[2022] FWC 2350

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Retail and Fast Food Workers Union Incorporated
v

Apple Pty Ltd T/A Apple

(B2022/1321)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 5 SEPTEMBER 2022

Proposed protected action ballot of employees of Apple Pty Ltd.

This is an application by the Retail and Fast Food Workers Union Incorporated (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Apple Pty Ltd T/A Apple (the Respondent).

On 5 September 2022, my Associate was advised that the Respondent does 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 Mr Joshua Cullinan 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 also 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 Mr Stephen Donaldson (Business Owner of TrueVote Pty Ltd). I am satisfied that Mr Donaldson is a fit and proper person to conduct the ballot. I am also satisfied that he is capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. Mr Donaldson 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 Mr Stephen Donaldson as the protected action ballot agent.

An order has been separately issued in PR745485.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission dealt with an application by the Retail and Fast Food Workers Union Incorporated (Applicant) for a protected action ballot order against Apple Pty Ltd T/A Apple (Respondent). The Applicant sought to conduct a ballot of the Respondent's employees in relation to certain industrial action. The Respondent did not object to the application, resulting in the matter being determined on the papers without a hearing. The key legal issue was whether the requirements of the Fair Work Act 2009 for a protected action ballot were satisfied, including the notification period and the steps taken by the Applicant in bargaining with the Respondent.

The Deputy President of the Commission was satisfied that the notification period for the proposed agreement had been met and that the Applicant had genuinely attempted to reach an agreement with the Respondent. The Deputy President also considered that the proposed ballot agent, Mr Stephen Donaldson, was a fit and proper person to conduct the ballot. The Respondent did not oppose the appointment of Mr Donaldson as the ballot agent, who was bound to comply with the Privacy Act 1998 with respect to the handling of information relating to the ballot. Therefore, the Deputy President appointed Mr Donaldson as the protected action ballot agent.

The Fair Work Commission granted the Applicant's application for a protected action ballot order, with Mr Stephen Donaldson appointed as the ballot agent. The Commission noted that an order had been separately issued in PR745485. The Deputy President's decision was based on the material before the Commission, including the declaration of the Applicant's representative and the lack of objection from the Respondent. The Commission's decision allows the Applicant to proceed with the ballot of the Respondent's employees in relation to the proposed industrial action.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established