United Workers' Union & Matthew Kloock v Donaldson Australasia Pty Ltd

[2024] FWC 930

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union & Matthew Kloock
v

Donaldson Australasia Pty Ltd

(B2024/427)

DEPUTY PRESIDENT CROSS

SYDNEY, 11 APRIL 2024

Proposed protected action ballot of employees of Donaldson Australasia Pty Ltd

This is an application by the United Workers' Union & Matthew Kloock (Applicants) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Donaldson Australasia Pty Ltd (Respondent).

On 10 April 2024, 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 declarations of Matthew Klook and Sukanya Anantharaman of the Applicant setting out the steps taken by it in bargaining with the Respondent and 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 ballot is to be conducted by the Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 24 April 2024.

This also establishes the ballot period for the purpose of s.448A(2) of the Act.

Two orders have been separately issued in PR773379 and PR773380.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives for the proposed enterprise agreement 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union, along with Matthew Kloock, applied to the Fair Work Commission for a protected action ballot order under section 437 of the Fair Work Act 2009 in relation to employees of Donaldson Australasia Pty Ltd. The application was made to facilitate a ballot for potential protected action, a process permitted under the Fair Work Act to help employees negotiate better terms and conditions with their employer. The Fair Work Commission, through Deputy President Cross, was tasked with deciding on the application.

The legal issues at the heart of the decision revolved around whether the conditions for a protected action ballot order were met, specifically whether the union had genuinely attempted to negotiate with the employer and whether there was a notification period for the proposed agreement. The Commission also had to determine the closing date for the ballot and ensure that the ballot would be conducted by a qualified agent.

The Fair Work Commission determined that the United Workers' Union had genuinely engaged in bargaining with Donaldson Australasia Pty Ltd and had met the requirements for a notification period as stipulated in section 443(1) of the Fair Work Act. With the respondent not objecting to the application, Deputy President Cross was satisfied that the ballot could proceed. The Commission set the closing date for voting as 24 April 2024, establishing the ballot period accordingly. Given the approval of the ballot agent, Democratic Outcomes Pty Ltd, the Commission issued separate orders for the ballot to take place as planned.

In conclusion, the Fair Work Commission granted the application for a protected action ballot order. The orders issued facilitate the ballot process and schedule a compulsory conciliation conference to be held by another member of the Commission, aimed at encouraging meaningful negotiations between the parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established