United Workers' Union v Arnott’s Biscuits Limited

[2024] FWC 753

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Arnott’s Biscuits Limited

(B2024/237)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 22 MARCH 2024

Proposed protected action ballot of employees of Arnott’s Biscuits Limited

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

On 21 March 2024, the Commission was advised that Arnott’s, in effect, did not object to the Application. However, it did seek clarification regarding one of the revised questions posed by the UWU.

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 Mr Jonathan Milman on behalf of the UWU, 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 Arnott’s, 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.

As to the ballot questions, there may, in effect, be some unnecessary duplication in 2 of the relevant questions; however, this is not presently a matter that prevents the making of the Order.

The ballot is to be conducted by the Australian Electoral Commission. 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 8 May 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 PR772651.

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 involved 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, 30 working days from the making of the Order, as sought in the application. It is also the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the United Workers' Union (UWU) under section 437 of the Fair Work Act 2009, seeking a protected action ballot order for certain employees of Arnott's Biscuits Limited (Arnott's). Arnott's did not object to the application but requested clarification on one of the ballot questions proposed by the UWU. The Deputy President Hampton determined the matter on the provided documentation without a hearing.

The court needed to decide whether the UWU had met the requirements under section 443(1) of the Act for a protected action ballot. This involved confirming that there was a notification period for the proposed agreement and that the UWU had genuinely attempted to reach an agreement with Arnott's. Additionally, the court assessed whether the ballot questions were appropriately formulated, noting that while there was some duplication, it did not impede the ballot's conduct.

Deputy President Hampton found that the UWU had satisfied the prerequisites for the ballot, including the notification period and genuine bargaining efforts. Although the ballot questions contained some duplication, this did not hinder the ballot's execution. The court also set the closing date for the voting as 8 May 2024, aligning with the Australian Electoral Commission's requirements and establishing the ballot period under section 448A(2) of the Act. The matter was subsequently assigned to another Commission member for a compulsory conciliation conference under section 448A, with directions to ensure meaningful negotiations.

This decision confirms the granting of the UWU's application for a protected action ballot, with specific procedural details and timelines outlined. The court's ruling ensures the ballot will proceed as planned, with the involvement of the Australian Electoral Commission and subsequent conciliation efforts by the Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established