United Workers' Union v Bega Dairy and Drinks Pty Ltd T/A Bega

[2023] FWC 1945

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Bega Dairy and Drinks Pty Ltd T/A Bega

(B2023/805)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 7 AUGUST 2023

Proposed protected action ballot of employees of Bega Dairy and Drinks Pty Ltd

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 Bega Dairy and Drinks Pty Ltd T/A Bega (Bega or Employer).

On 7 August 2023, the Commission was advised that Bega, in effect, did not object to the Application as amended.[1]

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 Leonidas Papanastasiou, UWU 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 Bega, 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 Australian Electoral Commission. For the purposes of s.443(3)(c) and s.448A(2) of the Act, a ballot period of 30 working days from the date of the Order (7 August 2023) has been determined by this Commission.

An order has been separately issued in PR764933.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. To the extent that this matter involves additional bargaining representatives for the proposed enterprise agreement, the Commission will issue a further Order requiring their attendance 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 had requested amendments be made to Clause three (3) and five (5) of the draft order; the Applicant did not object to the proposed amendments. These have been incorporated into the Order ultimately made by the Commission.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the United Workers’ Union (UWU) applied to the Fair Work Commission for a protected action ballot order concerning certain employees of Bega Dairy and Drinks Pty Ltd (Bega). This application was made under section 437 of the Fair Work Act 2009. The UWU sought the order to facilitate a proposed protected action ballot, which would allow its members to vote on the proposed enterprise agreement. The case was heard by Deputy President Hampton in Adelaide on 7 August 2023.

The primary legal issue before the Commission was whether the UWU had satisfied all the necessary requirements under the Fair Work Act to conduct a protected action ballot. This included verifying if the UWU had genuinely tried to reach an agreement with Bega and if all notification times in relation to the proposed agreement had been met. The Commission also needed to determine if the proposed ballot period was appropriate.

The Commission found that the UWU had genuinely attempted to reach an agreement with Bega and had fulfilled all the requirements under section 443(1) of the Act. The Commission was satisfied with the declaration provided by Leonidas Papanastasiou, the UWU Organiser, detailing the steps taken during the bargaining process. As a result, the Commission granted the application and issued an order for a protected action ballot to be conducted by the Australian Electoral Commission. The ballot period was set at 30 working days from the date of the order, which was 7 August 2023. Additionally, the matter was assigned to another member of the Commission to conduct a compulsory conciliation conference under section 448A of the Act.

In summary, the Fair Work Commission granted the UWU's application for a protected action ballot order. The Commission determined that the UWU had met all the requirements under the Fair Work Act and set a 30 working day ballot period. Further, the matter will proceed to a compulsory conciliation conference under section 448A of the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established