United Workers' Union v BDD Milk Pty Ltd Summary

[2022] FWC 2347

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

BDD Milk Pty Ltd

(B2022/1326)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 5 SEPTEMBER 2022

Proposed protected action ballot of employees of BDD Milk 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 BDD Milk Pty Ltd (Respondent).

On 5 September 2022, 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 Mr David Harris 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 PR745480.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission received an application from the United Workers' Union, seeking an order for a protected action ballot for certain employees of BDD Milk Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, and the matter was determined on the papers without a hearing as the employer did not object to the application. The Union argued that it had been genuinely trying to reach an agreement with the employer and had fulfilled the notification time for the proposed agreement. Additionally, the Union sought to appoint Democratic Outcomes Pty Ltd trading as CiVS as the ballot agent instead of the Australian Electoral Commission. The employer did not oppose this request, and the Court was satisfied that CiVS was a fit and proper person to conduct the ballot.

The primary legal issue before the Court was whether the Union had met the requirements under section 437 of the Fair Work Act 2009 to hold a protected action ballot. The Court needed to determine whether the Union had genuinely attempted to reach an agreement with the employer and whether the notification time for the proposed agreement had been met. Furthermore, the Court had to assess whether CiVS was a suitable and capable organisation to act as the ballot agent. The Court found that the Union had met all the necessary requirements, and the employer did not object to the appointment of CiVS as the ballot agent.

In determining the matter, the Deputy President of the Fair Work Commission examined the material provided by the Union, including the declaration of Mr David Harris, which set out the steps taken by the Union in bargaining with the employer. The Court was satisfied that the Union had genuinely tried to reach an agreement and that the notification time for the proposed agreement had been met. The Court also considered the statutory declaration provided by Mr Michael M Michael, the Managing Director of CiVS, and found that CiVS was a fit and proper person to conduct the ballot. The Court appointed CiVS as the protected action ballot agent and ordered that it be bound to comply with the Privacy Act 1998 regarding the handling of information relating to the ballot.

The Fair Work Commission granted the Union's application for a protected action ballot and appointed Democratic Outcomes Pty Ltd trading as CiVS as the ballot agent. The Court ordered that CiVS be bound to comply with the Privacy Act 1998 with respect to the handling of information relating to the ballot. The Union can now proceed with the ballot under the supervision of CiVS, provided it adheres to the privacy obligations set out in the order.

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