United Workers' Union v Americold Logistics Ltd

[2024] FWC 3108

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Americold Logistics Ltd

(B2024/1451)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 11 NOVEMBER 2024

Proposed protected action ballot of employees of Americold Logistics Ltd

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 11 November 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 Tegan Milliken, Senior 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 TrueVote Pty Ltd (TrueVote). TrueVote 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 25 November 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 PR781124.
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, 10 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union applied to the Fair Work Commission for a protected action ballot order concerning certain employees of Americold Logistics Ltd. This application was made under section 437 of the Fair Work Act 2009, which allows unions to request a ballot for protected industrial action if bargaining with an employer has reached an impasse. The employer, Americold Logistics Ltd, did not object to the application, and the matter was decided on the papers without a hearing. The Union provided a declaration by Tegan Milliken, Senior Organiser, which detailed the bargaining process and demonstrated the Union's genuine efforts to reach an agreement.

The legal issues before the Commission included whether the Union met the requirements for a protected action ballot as stipulated in section 443(1) of the Fair Work Act. This includes confirming that there is a notification time in relation to the proposed agreement and that the Union has genuinely attempted to reach an agreement. Additionally, the court had to determine the closing date for the ballot voting, which was set to ensure a timely process for the employees to participate in the ballot. The Union proposed TrueVote Pty Ltd to conduct the ballot, and the Commission confirmed that TrueVote was an approved ballot agent under section 468A of the Act.

The Deputy President, Wright, was satisfied that the Union had met all the requirements for a protected action ballot. The Commission established the closing date for the ballot voting as 25 November 2024, which was effectively 10 working days from the date of the order. This decision also set the ballot period for the purpose of section 448A(2) of the Act. The matter was assigned to another Member of the Commission for a compulsory conciliation conference, and directions were to be issued to ensure that the parties attend ready to negotiate. An Order was issued in PR781124 to facilitate the conduct of the ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established