Transport Workers' Union of Australia v Saputo Dairy Australia Pty Ltd

[2023] FWC 1723

[2023] FWC 1723

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia

v

Saputo Dairy Australia Pty Ltd

(B2023/712)

COMMISSIONER YILMAZ MELBOURNE, 17 JULY 2023

Proposed protected action ballot of employees of Saputo Dairy Australia Pty Ltd

1. This is an application by the Transport Workers' Union of Australia (TWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Respondent, Saputo Dairy Australia Pty Ltd (Saputo Dairy or Respondent). 

1. On 14 July 2023, the Commission was advised that the Respondent objects to the Application as it disputes the history of events at paragraph 4 of section 2.1 of the Declaration accompanying the Application.

1. My Chambers conducted a mention and hearing on 17 July 2023. The Respondent confirmed their opposition to the application.

1. The Respondent submits that the Commission should not be satisfied to make a protected action ballot order in relation to the proposed enterprise agreement on the basis that s.443(1)(b) has been met. It further submits that there has not been sufficient time to see whether the parties are able to reach agreement and that the parties agreed to a series of scheduled meetings. It submits that at the last meeting held on 3 July 2023, it was agreed for both parties to seek instructions on their respective positions and report back at the next meeting. It states that it committed to review its financial position for the next scheduled meeting which is set for 24 July 2023. It submits that it did not advise that it would not be prepared to revise their offer as submitted by the TWU in their materials in support of their application. The Respondent contends that the TWU has prematurely made the application on the assumption that it would not revise its offer.

1. The TWU contend that the application is not premature and despite the meeting held on 3 July and the next scheduled on 24 July 2023, the parties had not progressed the wage position among other matters over the course of 6 meetings. It further submits that the Commission must be satisfied that the Applicant has been, and is genuinely trying to reach an agreement, and the Respondent’s contentions have not challenged the test of s.443(1)(b).

1. Relevantly, s.443(1) provides:

‘(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a)  an application has been made under section 437; and

(b)  the FWC 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.’

1. Additionally, Deputy President Hampton in the recent decision of Application by "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) (188V) - [2023] FWC 1337 stated that:

‘[8] The Commission’s power to make a protected action ballot order under s.443 of the FW Act is not discretionary in nature. Section 443(1) imposes a duty on the Commission to make an order if two conditions have been met: first (in paragraph (a)), that an application for such an order has been made under s.437 and, second (in paragraph (b)), that the Commission is satisfied that each applicant for an order has been, and is, genuinely trying to reach an agreement with the employer of the employees to be balloted. If these conditions are not met, the Commission is prohibited from making an order: s.443(2). It is common ground that the first requirement has been met in this matter.’

1. From the materials before me including the submissions of the parties, I am satisfied that the parties, including the Applicant have participated in the scheduled meetings and are genuinely trying to reach agreement. There is no suggestion that the Applicant nor Respondent are not meeting the good faith bargaining requirements. While the Respondent submits that the application is premature, that insufficient time has passed to enable a review of their position prior to the next scheduled meeting, this is no basis to demonstrate that the TWU has not been or is not genuinely trying to reach agreement.

1. On the material before me, including the declaration of Mr Daryl Coghill, TWU Senior Organiser, setting out the steps taken by the TWU in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with Saputo Dairy, 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.

1. The ballot is to be conducted by the Australian Electoral Commission. For the purposes of s.443(3)(c) and s.448A(2) of the Act, a ballot period of 30 working days from the date of the Order (17 July 2023) has been established by this Commission.[1]  

1. An order has been separately issued in PR764247.

1. A further listing will be sent out from my Chambers scheduling a s.448A conference. I will issue the Order requiring attendance at the conference and as the parties have confirmed commitment for their next scheduled bargaining meeting, Directions for the conference will be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

COMMISSIONER

[1] This is the minimum period required by the Australian Electoral Commission.

Printed by authority of the Commonwealth Government Printer

<PR764246>