United Workers' Union v Australia Pharmaceutical Industries Pty Ltd Summary

[2023] FWC 1166

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Australia Pharmaceutical Industries Pty Ltd

(B2023/461)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 18 MAY 2023

Proposed protected action ballot of employees of Australia Pharmaceutical Industries Pty Ltd

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 Australian Pharmaceutical Industries Pty Ltd (Respondent).

On 17 May 2023, my Associate was advised that the Respondent 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 Ms Anna Thwaites 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.

The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). 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.

Therefore I appoint CiVS as the protected action ballot agent.

An order has been separately issued in PR761978.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, presided over by Deputy President Clancy, dealt with an application by the United Workers' Union against Australia Pharmaceutical Industries Pty Ltd. The application, lodged under section 437 of the Fair Work Act 2009, sought a protected action ballot order concerning certain employees of the Respondent. This application was filed due to the Union's claim that it had been genuinely attempting to reach an agreement with the Respondent but had been unsuccessful, necessitating the proposed industrial action.

The legal issues the Court needed to address were whether the notification period for the proposed agreement had been met and if the requirements under section 443(1) of the Act had been fulfilled. Additionally, the Court had to determine if the proposed ballot agent, Democratic Outcomes Pty Ltd trading as CiVS (CiVS), was fit and proper to conduct the ballot. The Union argued that CiVS was suitable to be the ballot agent, and the Respondent did not oppose this proposal. The Court needed to consider the experience of Mr Michael M Michael, the Managing Director of CiVS, and his declaration regarding his role in conducting the ballot, as well as CiVS's capacity to ensure the secrecy, security, and expeditious conduct of the ballot.

In deciding the matter, Deputy President Clancy noted that the Respondent did not object to the application, allowing the matter to be determined on the papers without a hearing. The Court was satisfied that the notification period had been met and that the Union had genuinely been trying to reach an agreement, thus fulfilling the requirements of section 443(1) of the Act. Furthermore, the Court found CiVS to be a fit and proper person to conduct the ballot, given Mr Michael's relevant experience and CiVS's agreement to comply with the Privacy Act 1998. Consequently, CiVS was appointed as the protected action ballot agent.

An order has been issued in PR761978, appointing CiVS as the protected action ballot agent for the proposed industrial action ballot.

United Workers' Union v Australia Pharmaceutical Industries Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established