Retail and Fast Food Workers Union Incorporated v Woolworths Group Limited and Woolworths (South Australia) Pty Limited T/A Woolworths Supermarkets

[2023] FWC 1850

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Retail and Fast Food Workers Union Incorporated
v

Woolworths Group Limited and Woolworths (South Australia) Pty Limited T/A Woolworths Supermarkets

(B2023/752)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 27 JULY 2023

Proposed protected action ballot of employees of Woolworths Group Limited and Woolworths (South Australia) Pty Limited T/A Woolworths Supermarkets

This is an application by the Retail and Fast Food Workers Union Incorporated (RAFFWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Woolworths Group Limited and Woolworths (South Australia) Pty Limited T/A Woolworths Supermarkets (Woolworths or Employers).

On 27 July 2023, the Commission was advised, in effect, that the Employers 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, RFFWU Secretary, setting out the steps taken by the RFFWU in bargaining with the Employers 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 the TrueVote Pty Ltd (TrueVote). TrueVote has recently 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) and s.448A(2) of the Act, and following consultation with the parties,[2] a ballot period of 25 working days from the date of the Order (27 July 2023) has been determined by the Commission.

An order has been separately issued in PR764630.

This matter will be assigned to another Member of the Commission to conduct the s.448A conference and this Member will issue the Order requiring attendance 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] TrueVote Pty Ltd [2023] FWC 1446.

[2] This largely accorded with the period proposed in the draft Order; however, the parties were also provided an opportunity to raise concerns regarding this matter. No submissions were provided to the Commission.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, under the Fair Work Act 2009, dealt with an application by the Retail and Fast Food Workers Union Incorporated (RAFFWU) for a protected action ballot order against Woolworths Group Limited and Woolworths (South Australia) Pty Limited T/A Woolworths Supermarkets. The application sought to enable employees of Woolworths to vote on proposed industrial action. Woolworths did not object to the application, allowing the Deputy President to decide the matter on the submitted documents without a hearing. The decision was made on 27 July 2023.

The primary legal issues before the court were whether the union had fulfilled the requirements to hold a ballot under section 443 of the Fair Work Act and if the notification time for the proposed agreement was met. The Deputy President found that the union had genuinely attempted to reach an agreement with Woolworths and met all the requirements for a ballot, including the notification time. The union also proposed TrueVote Pty Ltd as the authorised agent to conduct the ballot, which had been recently approved under section 468A of the Act. The Commission determined a ballot period of 25 working days from the date of the order.

The Commission concluded that the union had satisfied the legal requirements to hold a ballot and approved the use of TrueVote Pty Ltd as the ballot agent. A ballot period of 25 working days was set, starting from 27 July 2023. The matter will be reassigned to another Commissioner to conduct a section 448A conference to facilitate meaningful negotiations between the parties. The decision was issued, and an order was separately made in PR764630.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established