United Workers' Union v Blowflex Mouldings Pty Ltd Summary

[2023] FWC 2268

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Blowflex Mouldings Pty Ltd

(B2023/940)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 6 SEPTEMBER 2023

Proposed protected action ballot of employees of Blowflex Mouldings Pty Ltd

This is an application by the United Workers’ Union (AWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Blowflex Mouldings Pty Ltd (Blowflex or Employer).

On 6 September 2023, the Commission was advised that Blowflex, in effect, did not object to the application.

On the basis of the material before me, including the declaration of Mr Benjamin Reichstein, 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 Blowflex, 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[1] 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. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR765930.

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission dealt with an application by the United Workers’ Union (UWU) under section 437 of the Fair Work Act 2009, seeking a protected action ballot order in relation to certain employees of Blowflex Mouldings Pty Ltd (Blowflex). The application was made in the context of ongoing bargaining efforts between the UWU and Blowflex, aiming to reach an agreement over proposed enterprise terms. Blowflex did not object to the application, and the UWU provided a declaration affirming their genuine attempts to reach an agreement. The Commission determined that the ballot would be conducted by Democratic Outcomes Pty Ltd T/A CiVS (CiVS), which has been approved as a ballot agent under the Act.

The legal issues before the Commission included whether the UWU had fulfilled the necessary requirements for a protected action ballot under section 443 of the Fair Work Act. This involved verifying if there was a notification time for the proposed agreement and confirming that the UWU had genuinely tried to reach an agreement with Blowflex. The Commission was also required to determine the closing date for voting in the ballot and to establish the ballot period for the purposes of section 448A(2) of the Act. The decision involved ensuring that all procedural requirements were met to maintain the integrity and legality of the proposed industrial action.

Upon reviewing the evidence, Deputy President Hampton found that the UWU had met all the criteria set out in section 443 of the Act. The declaration from the UWU organiser, Mr Benjamin Reichstein, supported the assertion that the union had genuinely attempted to reach an agreement with Blowflex. Consequently, the Commission was satisfied that the notification time was in place and that all statutory requirements were fulfilled. The Deputy President ordered that the ballot would close on 28 September 2023, thereby setting the ballot period. The matter was referred for a compulsory conciliation conference under section 448A, to be conducted by another member of the Commission, with a separate order issued to ensure meaningful negotiations.

In conclusion, the Commission granted the UWU's application for a protected action ballot order, setting the closing date for the ballot and determining the ballot period. The decision also assigned the compulsory conciliation conference to another member of the Commission, with orders issued to facilitate effective negotiations. This ruling ensures that the bargaining process continues in a structured and legally compliant manner, aiming to resolve the dispute between the UWU and Blowflex.

United Workers' Union v Blowflex Mouldings Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established