United Workers' Union v BDD Milk Pty Ltd Summary

[2023] FWC 2277

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

BDD Milk Pty Ltd

(B2023/943)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 6 SEPTEMBER 2023

Proposed protected action ballot of employees of BDD Milk Pty Ltd

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 BDD Milk Pty Ltd (BDD Milk or Employer).

On 6 September 2023, the Commission was advised that in light of certain amendments[1] to the application, BDD Milk 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 Benjamin Reichstein, 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 BDD Milk, 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 PR765953.

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] To clarify the group of employees to be balloted.

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

[3] This date was specified in the proposed order and is, in effect, sixteen (16) working days from the date of the Order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the United Workers’ Union (UWU) for a protected action ballot order in relation to certain employees of BDD Milk Pty Ltd (BDD Milk). The UWU sought the order under s.437 of the Fair Work Act 2009. The dispute centred on the proposed industrial action ballot for BDD Milk employees, and the Commission was tasked with determining whether the application met the statutory requirements. BDD Milk did not object to the application, allowing the matter to proceed on the papers without a hearing.

The central legal issue before the Commission was whether the UWU had fulfilled the statutory prerequisites for conducting a protected action ballot. This involved verifying that the union had genuinely attempted to reach an agreement with BDD Milk and that all necessary notification periods had been observed. The Commission reviewed the declaration of Mr. Benjamin Reichstein, the UWU Organiser, which detailed the bargaining efforts and the union's genuine attempt to reach an agreement. Additionally, the suitability of Democratic Outcomes Pty Ltd T/A CiVS (CiVS) as the ballot agent was assessed, confirming that CiVS met the approval criteria under s.468A of the Act.

The Deputy President concluded that the UWU had satisfied all statutory requirements for the protected action ballot. The Commission determined that the notification period was appropriate and that CiVS was a qualified agent to conduct the ballot. The date for closing the voting period was set as 28 September 2023. This decision established the ballot period for the purposes of s.448A(2) of the Act. The Commission also issued an Order for a compulsory conciliation conference, to be conducted by another member of the Commission, to facilitate meaningful negotiations between the parties involved.

In summary, the Fair Work Commission granted the UWU's application for a protected action ballot order, confirming that the union had genuinely attempted to reach an agreement with BDD Milk and that the statutory requirements were met. The ballot was to be conducted by CiVS, and the voting period was set to close on 28 September 2023. A compulsory conciliation conference was scheduled to further the negotiation process.

United Workers' Union v BDD Milk Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established