United Workers' Union v Australasian Food Group Pty Ltd T/A Peter's Ice Cream

[2023] FWC 2255

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Australasian Food Group Pty Ltd T/A Peter’s Ice Cream

(B2023/934)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 5 SEPTEMBER 2023

Proposed protected action ballot of employees of Australasian Food Group Trading As Peter’s Ice Cream

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 Australasian Food Group Pty Ltd[1] T/A Peter’s Ice Cream (Peter’s Ice Cream or Employer).

On 5 September 2023, the Commission was advised that Peter’s Ice Cream did not, in effect, 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 Mr David Harris, 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 Peter’s Ice Cream, 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 the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[2] 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 28 September 2023.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR765890.

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] The Respondent’s name has been amended to reflect the apparent legal entity involved.

[2] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[3] This date was specified in the proposed order and is, in effect, seventeen (17) working days from the date effect of the Order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked by the United Workers' Union to authorise a ballot for protected action by employees of Australasian Food Group Pty Ltd, trading as Peter’s Ice Cream. The application was made under section 437 of the Fair Work Act 2009. The employer did not object to the application, leading the Deputy President to decide the matter based on the submitted documentation without holding a hearing. The Union provided a declaration from their Organiser, Mr David Harris, which outlined the steps taken in bargaining with the employer and affirmed their genuine attempt to reach an agreement.

The legal issues before the court involved whether the Union had met the requirements under section 443(1) of the Act to hold a ballot for protected action and whether the proposed agent for conducting the ballot, Democratic Outcomes Pty Ltd t/a CiVS, was eligible. The Union's declaration and the lack of objection from the employer provided the necessary basis for the court to determine that all requirements for a ballot were satisfied. Additionally, the court confirmed that CiVS was an approved ballot agent under section 468A of the Act, thus authorised to conduct the ballot.

The Deputy President concluded that the Union had fulfilled the conditions for a ballot under the Fair Work Act. The court established the closing date for voting as 28 September 2023, which also set the ballot period for compulsory conciliation purposes. An order was separately issued to mandate the attendance of all bargaining representatives at the conciliation conference, where meaningful negotiations are expected to take place. This case highlights the process for unions to legally organise a ballot for protected action when negotiations with an employer have reached an impasse.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established