Shop, Distributive and Allied Employees Association v Inghams Enterprises Pty Limited

[2022] FWC 3218

[2022] FWC 3218

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Shop, Distributive and Allied Employees Association
v

Inghams Enterprises Pty Limited

(B2022/1797)

COMMISSIONER HUNT BRISBANE, 9 DECEMBER 2022

Proposed protected action ballot of employees of Inghams Enterprises Pty Limited

1. The Shop, Distributive and Allied Employees Association (SDA) has made an application under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees for Inghams Enterprises Pty Limited (the Respondent). The application was accompanied by a statutory declaration of Mr Benjamin Harris, Assistant Secretary of the WA Branch.

1. On 6 December 2022, the Fair Work Commission (the Commission) was advised that the Respondent did not oppose the application, save for two matters. The first was identifying a discrepancy in the application in relation to the proposed date for the vote to close. The Respondent identified that at clause 2.3 of the Form F34, the date for the vote to close is proposed to be “seven days after the date of the order” which is inconsistent with part 4 of the same Form which states “seven (7) days after the Commencement Date”. In an email sent on the same day, the SDA amended its application seeking for the date for the vote to close be two days after the Commencement Date. The Respondent communicated today that it has no objection to the amendment.   

1. The Respondent further raised that it did not maintain or update a register of personal email addresses for employees covered by the Agreement and therefore cannot guarantee the accuracy or currency of such email addresses. The Applicant is cognisant of this fact.     

1. In the circumstances, I have decided to determine the matter on papers without holding a hearing.

1. On the basis of the material before me, including the declaration of Mr Harris setting out the steps taken by the SDA in bargaining with the Respondent and confirming that the SDA has been, and is, genuinely trying to reach agreement with the Respondent, I am also satisfied there is a notification time in relation to the proposed agreement and the requirements in section 443(1) of the Act have been met.

1. I am satisfied that the SDA has given notice in accordance with s.440 of the Act.

1. The SDA also sought that a person other than the Australian Electoral Commission (AEC) 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 Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M. Michael, the Managing Director of CiVS has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots.

1. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVS has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

1. Therefore, I appoint CiVS as the protected action ballot agent.

1. The Order [PR748642] will be issued concurrently with this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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