United Workers' Union v Bega Cheese Ltd

[2022] FWC 2352

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Bega Cheese Ltd

(B2022/1327)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 5 SEPTEMBER 2022

Proposed protected action ballot of employees of Bega Cheese 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 Bega Cheese 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 Neil Smith 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 PR745489.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers’ Union (UWU) made an application under the Fair Work Act 2009 to the Fair Work Commission (FWC) for a protected action ballot order in relation to certain employees of Bega Cheese Ltd (BCL). The UWU, acting on behalf of the employees, sought to organise a ballot as a means of protected action, as stipulated under the Act, to resolve ongoing disputes in their negotiations with BCL. The Deputy President of the FWC, Clancy, presided over the case in Melbourne on 5 September 2022. BCL did not object to the application, leading Deputy President Clancy to determine the matter on the submitted documents without a hearing.

The primary legal issue before the FWC was whether the UWU had satisfied the statutory requirements to organise a protected action ballot. This involved confirming that the UWU had genuinely attempted to reach an agreement with BCL and that all procedural prerequisites under the Fair Work Act had been met, including the notification period for the proposed agreement. Additionally, the FWC had to assess whether the proposed ballot agent, Democratic Outcomes Pty Ltd trading as CiVS (CiVS), was suitable to conduct the ballot, ensuring the secrecy, security of votes, and expeditious conduct of the ballot.

In reaching the decision, Deputy President Clancy examined the declaration from Mr Neil Smith of the UWU, which detailed the union's bargaining efforts with BCL, and concluded that the union had genuinely tried to reach an agreement. The Deputy President was also satisfied with the statutory declaration provided by Mr Michael M Michael, Managing Director of CiVS, confirming his experience in conducting protected action ballots and CiVS's capability to ensure the secrecy and security of the votes. Given that BCL did not oppose CiVS as the ballot agent, Deputy President Clancy appointed CiVS as the protected action ballot agent, ensuring compliance with the Privacy Act 1998 concerning the handling of ballot-related information.

The final orders included the authorisation of CiVS as the protected action ballot agent and the issuance of a separate order in PR745489 to formalise the appointment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established