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

[2022] FWC 2141

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Retail and Fast Food Workers Union Incorporated
v

Readings Pty Ltd T/A Readings

(B2022/1213)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 12 AUGUST 2022

Proposed protected action ballot of employees of Readings 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 Readings Pty Ltd T/A Readings (the Respondent).

On 11 August 2022, 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 Mr Joshua Cullinan of the Applicant, setting out the steps taken by the Applicant in bargaining and the assertion 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 PR744721.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission received an application from the Retail and Fast Food Workers Union Incorporated for a protected action ballot order concerning certain employees of Readings Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, seeking approval for a ballot to be held among the employees. Readings Pty Ltd did not object to the application, and the matter was determined on the papers without a hearing. The Deputy President, Clancy, was satisfied that the union had met the requirements for a protected action ballot, including the notification time and the assertion of genuine bargaining efforts. The union also requested that a person other than the Australian Electoral Commission be appointed as the ballot agent, and Mr. Stephen Donaldson was appointed for this role. The Deputy President was satisfied that Mr. Donaldson was a fit and proper person to conduct the ballot, capable of ensuring the secrecy and security of the votes, and bound to comply with the Privacy Act 1998.

The key legal issues in this case were whether the union had met the requirements for a protected action ballot under the Fair Work Act 2009, and whether the proposed ballot agent was suitable for the role. The union had to demonstrate that it had genuinely tried to reach an agreement with the employer and that the notification time had been met. Additionally, the court had to determine if the proposed ballot agent, Mr. Stephen Donaldson, was a fit and proper person to conduct the ballot, capable of ensuring the secrecy and security of the votes, and bound to comply with the Privacy Act 1998.

The Deputy President, Clancy, found that the union had met the requirements for a protected action ballot, including the notification time and the assertion of genuine bargaining efforts. The Deputy President was also satisfied that Mr. Stephen Donaldson was a fit and proper person to conduct the ballot, capable of ensuring the secrecy and security of the votes, and bound to comply with the Privacy Act 1998. The Deputy President appointed Mr. Stephen Donaldson as the protected action ballot agent, and an order was separately issued in PR744721.

In summary, the Fair Work Commission granted the union's application for a protected action ballot order, finding that the union had met the requirements for such a ballot under the Fair Work Act 2009. The Deputy President also appointed Mr. Stephen Donaldson as the ballot agent, finding him to be a fit and proper person for the role. An order was issued separately in PR744721.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established