United Workers' Union v Bunnings Group Limited

[2023] FWC 2243

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Bunnings Group Limited

(B2023/924)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 5 SEPTEMBER 2023

Proposed protected action ballot of employees of Bunnings Group Limited

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 Bunnings Group Limited (Respondent).

On 4 September 2023, the Respondent initially advised the Commission that it raised concerns in relation to the form and content of the application, in particular the description of the employees to be balloted in the draft order and the modern award applicable to the relevant operations. I determined a Mention should be conducted on 5 September 2023, during which I discussed the above matters with the parties. An amended draft order which addressed the concerns about the group of employees to be balloted was ultimately agreed.

With the parties having resolved the issues raised, I have proceeded to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Jasdev Kang 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 ballot is to be conducted by 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 in the protected action ballot is to close is 4 October 2023. This is the equivalent of 20 working days after the date of the Order (5 September 2023). This also establishes the period for the purposes of s.448A(2) of the Act.

An order has been separately issued in PR765848.

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 received an application from the United Workers’ Union (the applicant) under section 437 of the Fair Work Act 2009 to authorise a ballot for protected action in relation to certain employees of Bunnings Group Limited (the respondent). The proposed action involved a ballot of employees to approve the protected action in question. The respondent raised concerns about the form and content of the application, particularly regarding the description of the employees to be balloted and the modern award applicable to the relevant operations. An amended draft order was agreed upon, resolving the concerns, and the matter was determined on the papers without a hearing.

The legal issues before the Commission included whether the applicant had met the requirements under section 443(1) of the Fair Work Act 2009 for a notification time in relation to the proposed agreement and whether the applicant had genuinely attempted to reach agreement with the respondent. Additionally, the Commission needed to determine the closing date for the ballot under section 443(3)(c) of the Act and establish the period for the purposes of section 448A(2) of the Act. The Commission also needed to ensure that the ballot agent, Democratic Outcomes Pty Ltd T/A CiVS, was approved and authorised to conduct the ballot.

The Commission found that the applicant had met the notification time requirement and had genuinely tried to reach agreement with the respondent. The Commission authorised the ballot agent, CiVS, to conduct the ballot and determined that the voting in the protected action ballot must close by 4 October 2023, which is 20 working days after the date of the Order (5 September 2023). This date also establishes the period for the purposes of section 448A(2) of the Act. An order has been separately issued in PR765848, and the matter will be assigned to another Member of the Commission to conduct the section 448A compulsory conciliation conference. The Commission is likely to issue Directions to ensure that the parties attend the conference ready to conduct meaningful negotiations.

The Fair Work Commission has ordered that the protected action ballot for the United Workers’ Union in relation to certain employees of Bunnings Group Limited may proceed. The ballot must be conducted by Democratic Outcomes Pty Ltd T/A CiVS and must close by 4 October 2023. A separate order has been issued in PR765848, and a compulsory conciliation conference will be conducted to ensure that the parties are ready to conduct meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established