United Workers' Union v Aspen Pharma Pty Ltd

[2023] FWC 318

[2023] FWC 318

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Aspen Pharma Pty Ltd

(B2023/85)

DEPUTY PRESIDENT CLANCY MELBOURNE, 7 FEBRUARY 2023

Proposed protected action ballot of employees of Aspen Pharma Pty Ltd.

1. This is an application by the United Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Aspen Pharma Pty Ltd (the Respondent).

1. The Respondent initially advised my Chambers that it raised several concerns in relation to the form and content of the draft order accompanying the application. In correspondence to my Chambers, the Applicant proposed an amended form of wording for one of the questions and queried another. I caused correspondence to be sent to the parties in response and this prompted the Applicant to amend two of the questions. I also invited the Respondent to advise as to whether it wished to be heard in relation to its concerns but received no response. Accordingly, I have decided to determine the matter on the papers without holding a hearing  

1. On the basis of the material before me, including the declaration of Ms Sukanya Ananth 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. I cannot see a statutory basis upon which the Applicant’s application should be rejected.

1. The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. The Respondent raised a general concern about the person proposed as the protected action ballot agent, being Democratic Outcomes Pty Ltd trading as CiVS (CiVS) and expressed a preference for the AEC.

1. Section 444 of the Act states:

“444      FWC may decide on ballot agent other than the Australian Electoral Commission and independent advisor

Alternative ballot agent

(1) The FWC may decide that a person other than the Australian Electoral Commission is to be the protected action ballot agent for a protected action ballot only if:

(a) the person is specified in the application for the protected action ballot order as the person the applicant wishes to be the protected action ballot agent; and

(b) the FWC is satisfied that:

(i) the person is a fit and proper person to conduct the ballot; and

(ii) any other requirements prescribed by the regulations are met.

1. The Regulations provide:

“Reg 3.11         FWC may decide on ballot agent other than the Australian Electoral Commission--requirements for protected action ballot agent

(1) For subparagraph 444(1)(b)(ii) of the Act, this regulation sets out requirements that the FWC must be satisfied have been met before a person other than the Australian Electoral Commission becomes the protected action ballot agent for a protected action ballot.

Note:         The person must also be a fit and proper person to conduct the ballot.

(2) The person must be capable of ensuring the secrecy and security of votes cast in the ballot.

(3) The person must be capable of ensuring that the ballot will be fair and democratic.

(4) The person must be capable of conducting the ballot expeditiously.

(5) The person must have agreed to be a protected action ballot agent.

(6) The person must be bound to comply with the Privacy Act 1988 in respect to the handling of information relating to the protected action ballot.

(7) If the person is an industrial association or a body corporate, the FWC must be satisfied that:

(a) each individual who will carry out the functions of the protected action ballot agent for the industrial association or body corporate is a fit and proper person to conduct the ballot; and

(b) the requirements in subregulations (2) to (6) are met for the individual.

1. Mr Michael M Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot. As to the further comments from the Respondent’s representative regarding the proposed ballot arrangements, I was not persuaded, based on the information submitted, that they weighed against the appointment of CiVS. In this regard, I note the Respondent was invited to advise as to whether it wished to be heard in relation to its concerns but no response to this invitation was received.

1. Therefore I appoint CiVS as the protected action ballot agent.

1. An order has been separately issued in PR750271.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR750270>