United Workers' Union v Bega Dairy & Drinks Pty Ltd Summary

[2023] FWC 1973

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Bega Dairy & Drinks Pty Ltd

(B2023/816)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 10 AUGUST 2023

Proposed protected action ballot of employees of Bega Dairy & Drinks 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 Bega Dairy & Drinks Pty Ltd (Bega or Employer). [1]

On 10 August 2023, the Commission was advised that Bega did not object to the Application as amended to deal with certain aspects of the proposed order originally raised by it.

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 Majaraya Buenaflor on behalf of the UWU, 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) of the Act, and following consultation with the parties, this Commission has determined that the date by which voting in the protected action ballot is to close is 21 September 2023.[2] This also establishes the ballot period for the purposes of s.448A(2) of the Act.

An order has been separately issued in PR765006.

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] The application has been amended, with leave, to confirm the correct name of the respondent employer.

[2] This is, in effect, 30 working days from the date of effect of the Order. 30 working days is the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the United Workers' Union for a protected action ballot order concerning employees of Bega Dairy & Drinks Pty Ltd. Bega Dairy & Drinks Pty Ltd did not object to the application, allowing the matter to be decided on the written submissions alone. The Union sought to conduct a ballot to determine if employees would support protected industrial action. The Commission found that all requirements under the Fair Work Act 2009 had been met, including the notification period and the Union's genuine attempt to reach an agreement with the employer.

The legal issues before the Commission included whether the Union had followed the correct procedures and met all statutory requirements for a protected action ballot. Additionally, the Commission had to determine an appropriate closing date for the ballot to ensure it could be conducted effectively by the Australian Electoral Commission. The Union argued that the requirements were satisfied, and Bega Dairy & Drinks Pty Ltd did not contest these claims. The Commission accepted the Union's submissions and determined that the ballot would close on 21 September 2023, allowing sufficient time for the Electoral Commission to conduct the ballot.

In its decision, the Commission noted that the Union had provided a declaration confirming its bargaining efforts and that a notification period had been observed. The Commission concluded that all necessary steps had been taken and that the application met the criteria under section 443 of the Fair Work Act. The Commission set the closing date for the ballot to allow adequate time for the Electoral Commission to organise and conduct the ballot. The matter will proceed to a compulsory conciliation conference, which will be overseen by another member of the Commission to facilitate negotiations between the parties.

The Commission issued an order granting the application for a protected action ballot, specifying that the ballot will close on 21 September 2023. This decision ensures that the process for the ballot is properly established, allowing the Union to proceed with the necessary industrial action if supported by the employees.

United Workers' Union v Bega Dairy & Drinks Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established