United Workers' Union v Americold Logistics Limited Summary

[2024] FWC 2032

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Americold Logistics Limited

(B2024/966)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 31 JULY 2024

Proposed protected action ballot of employees of Americold Logistics Limited

This is an application by the United Workers’ Union (UWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Americold Logistics Ltd (Americold or Employer).

On 31 July 2024, the Commission was advised that the Employer, in effect, 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 Craig Wong, Organiser, setting out the steps taken by the UWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Americold, 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 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 19 August 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR777722.

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 in 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

[1] This is, in effect, 13 working days from the making of the Order and was the date agreed upon by both parties. The parties have also requested that CiVS close the ballot at 2.00pm on that day.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union (UWU) has applied to the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Americold Logistics Limited (Americold). The proposed action involves a ballot to be conducted by Democratic Outcomes Pty Ltd (CiVS), which has been approved as an eligible protected action ballot agent under section 468A of the Act. The application was made due to the union's efforts to reach an agreement with Americold during bargaining, as outlined in the declaration by Craig Wong, the UWU Organiser.

The legal issues before the FWC centred on whether the UWU had satisfied the requirements of section 443 of the Act, including demonstrating a notification time in relation to the proposed agreement and proving that it had genuinely been trying to reach an agreement with the employer. The FWC also had to determine the closing date for the ballot voting, taking into account the agreement of both parties. The FWC examined the documentation provided by the UWU, including the declaration by Wong, to assess whether all conditions for the ballot were met.

After considering the material presented, Deputy President Hampton concluded that the UWU had fulfilled the requirements under section 443(1) of the Act. The FWC was satisfied that there was a notification time for the proposed agreement and that the UWU had genuinely attempted to reach an agreement with Americold. Consequently, the Commission decided to issue an order allowing the ballot to proceed. The voting was set to close on 19 August 2024, which was effectively 13 working days from the making of the order and was agreed upon by both parties. The ballot was to be conducted by CiVS, with voting closing at 2.00pm on the specified date.

This decision also included an order assigning the matter to another Member of the FWC for a compulsory conciliation conference under section 448A of the Act. The order required the attendance of all bargaining representatives involved in the proposed enterprise agreement. Additionally, directions were likely to be issued to ensure the parties were prepared to conduct meaningful negotiations at the conference.

United Workers' Union v Americold Logistics Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established