United Workers' Union v CHEP Australia Limited Summary

[2024] FWC 3319

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

CHEP Australia Limited

(B2024/1566)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 29 NOVEMBER 2024

Proposed protected action ballot of employees of CHEP Australia Limited

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 CHEP Australia Limited (CHEP or Employer).

On 29 November 2024, the Commission was advised that the Employer, in effect, 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 Gwen Amankwah-Toa, 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 CHEP, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act 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 13 December 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR781848.

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 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] This is, in effect, 10 working days from the making of the Order and was the specific date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union (UWU) lodged an application under section 437 of the Fair Work Act 2009 (Act) seeking a protected action ballot order for certain employees of CHEP Australia Limited. The dispute centred around the proposed enterprise agreement, and the UWU aimed to secure the right to conduct a ballot for protected action if negotiations with CHEP failed to reach an agreement. The matter was heard by Deputy President Clancy of the Fair Work Commission in Melbourne on 29 November 2024. Notably, CHEP did not object to the application, allowing the Commission to proceed with a determination based on the documents submitted.

The legal issues before the Commission included whether the UWU had met the statutory requirements to seek a ballot for protected action, and if the notification time had been properly observed. Additionally, the court had to confirm whether the ballot agent, Democratic Outcomes Pty Ltd (CiVS), was suitably authorised to conduct the ballot. Under section 443(1) of the Act, the UWU was required to demonstrate that it had genuinely tried to reach an agreement with CHEP and that all procedural steps had been followed. Furthermore, the court needed to set the closing date for voting in accordance with section 443(3)(c) of the Act.

Deputy President Clancy found that the UWU had fulfilled all the statutory requirements for seeking a ballot for protected action. The declaration from Gwen Amankwah-Toa, the UWU Organiser, substantiated that the union had genuinely engaged in bargaining efforts with CHEP. Given that CHEP did not oppose the application, the Deputy President was satisfied that the notification time had been properly observed. The court authorised Democratic Outcomes Pty Ltd as the ballot agent, confirming its eligibility under section 468A of the Act. Consequently, the Deputy President set the closing date for voting as 13 December 2024, which aligns with the period stipulated in the application. This decision also established the ballot period for the purposes of section 448A(2) of the Act.

A separate order was issued in PR781848, and the matter was assigned to another member of the Commission to conduct a compulsory conciliation conference. The member will issue an order requiring all bargaining representatives in the proposed enterprise agreement to attend the conference. Directions will likely be issued to ensure that the parties are prepared to engage in meaningful negotiations.

United Workers' Union v CHEP Australia Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established