The Australian Workers’ Union; United Workers’ Union v Summary

[2022] FWC 278

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers’ Union; United Workers’ Union
v

Snack Brands Australia, being a partnership between Snack Brands Foods Pty Ltd and Snack Brands Industries Pty Ltd

(B2022/62; B2022/63)

COMMISSIONER MCKINNON

SYDNEY, 11 FEBRUARY 2022

Proposed protected action ballot of employees; whether genuinely trying to reach agreement.

The Australian Workers’ Union (AWU) and the United Workers’ Union (UWU) (together, the Unions) are bargaining for an enterprise agreement with Snack Brands Australia (Snack Brands) under the Fair Work Act 2009 (the Act). The proposed agreement would replace the Snack Brands Australia Smithfield Operations Site Agreement 2019 (the 2019 Agreement) which nominally expired on 8 February 2022. Some employees of Snack Brands who will be covered by the proposed agreement are either members of the AWU or the UWU.

There is no dispute that the Unions are each bargaining representatives for the proposed agreement and that there was a notification time for the proposed agreement on 27 September 2021.

Since bargaining commenced there have been seven meetings between Snack Brands and the Unions about the proposed agreement. A further meeting is scheduled for 14 February 2022.

The Unions now seek protected action ballot orders in relation to the proposed agreement. Snack Brands does not wish to be heard in relation to the substantive application.

The groups of employees proposed to be balloted are:

For the AWU, its member employees who are currently engaged under the 2019 Agreement and who would be subject to the proposed enterprise agreement and who have not appointed someone other than the AWU to be their bargaining representative.

For the UWU, employees of Snack Brands who are members of the UWU and who would be subject to the proposed enterprise agreement.

Section 437 of the Act deals with when a bargaining representative can apply for a protected action ballot order. Section 443 requires the Commission to make a protected action ballot order if certain conditions are met. Relevantly, the Commission must (and must only) make an order if application has been made under section 437 and the Commission is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

On the basis of the material before me, including the statutory declarations of Massimo Gregorio and Pareen Minhas and subsequent information provided by the parties, I am satisfied that:

there is a notification time in relation to the proposed agreement;
the application is made under section 437; and
the Unions have been, and are, genuinely trying to reach an agreement with Snack Brands.

The result is that a protected action ballot order must be made in each case. Orders PR738249 and PR738256 will issue separately and will come into effect today.

COMMISSIONER

Appearances:

T Craven on behalf of the AWU.
No appearance for the UWU.
K Hollings on behalf of Snack Brands.

Mention details:

2022.
Sydney (video):
February 10.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union and the United Workers' Union sought protected action ballot orders from the Fair Work Commission in relation to a proposed enterprise agreement with Snack Brands Australia. The proposed agreement would replace the existing Smithfield Operations Site Agreement 2019, which expired on 8 February 2022. The Unions argued that they were genuinely trying to reach an agreement with Snack Brands, and sought the ballot orders to facilitate protected industrial action if negotiations failed. Snack Brands did not contest the application, and the Commission was required to decide whether to make the ballot orders under section 443 of the Fair Work Act 2009.

The primary issue before the Commission was whether the Unions had been genuinely trying to reach an agreement with Snack Brands. The Commission considered the statutory declarations of Massimo Gregorio and Pareen Minhas, as well as further information provided by the parties. The Commission found that there was a notification time in relation to the proposed agreement, the application was made under section 437, and the Unions had been genuinely trying to reach an agreement with Snack Brands. The Commission noted that there had been seven meetings between Snack Brands and the Unions since bargaining commenced, and that a further meeting was scheduled for 14 February 2022.

In light of the evidence before it, the Commission was satisfied that the Unions had met the requirements for a protected action ballot order under section 443 of the Fair Work Act 2009. Orders PR738249 and PR738256 were made in favour of the AWU and the UWU respectively, and came into effect on the date of the decision. The Commission noted that the orders would facilitate protected industrial action if negotiations between the parties failed.

This decision highlights the importance of genuine bargaining efforts in the enterprise agreement process. The Commission found that the Unions had been genuinely trying to reach an agreement with Snack Brands, and that the requirements for a protected action ballot order had been met. The decision also emphasises the role of the Commission in facilitating the enterprise agreement process, and in providing a mechanism for protected industrial action if negotiations fail.

The Australian Workers’ Union; United Workers’ Union v

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established