United Workers' Union v Coles Group Supply Chain Pty Ltd Summary

[2023] FWC 1856

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Coles Group Supply Chain Pty Ltd

(B2023/756)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 27 JULY 2023

Proposed protected action ballot of employees of Coles Group Supply Chain 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 Coles Group Supply Chain Pty Ltd (Coles or Employer).

On 27 July 2023, the Commission was advised, in effect, that Coles 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 Mr Christopher Dundon, 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 Coles, 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 recently 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) and s.448A(2) of the Act, and following consultation with the parties,[2] a ballot period of 15 working days from the date of the Order (27 July 2023) has been determined by the Commission.

An Order has been separately issued in PR764649.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference and this Member will issue the Order requiring 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] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[2] This accorded with the ballot period ultimately proposed by the UWU following clarification being sought by the Commission, and no objecting submissions have been provided.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the United Workers' Union (UWU) for a protected action ballot order concerning employees of Coles Group Supply Chain Pty Ltd (Coles). The UWU sought to conduct a ballot to determine if its members were in favour of protected action, as permitted under section 437 of the Fair Work Act 2009. Coles did not object to the application, and the Commission decided to proceed without a hearing. The matter was resolved based on the evidence provided by the UWU, including a declaration by its organiser, which demonstrated the union's efforts to reach an agreement with Coles. The Commission determined that the conditions for a protected action ballot were met, including the notification period and compliance with relevant sections of the Act.

The legal issues before the Commission involved confirming whether the UWU had genuinely attempted to negotiate with Coles and whether all statutory requirements were fulfilled to permit the proposed ballot. The Commission needed to assess the UWU's declaration and other materials to ensure that the union had complied with the necessary procedures under the Fair Work Act. Additionally, the Commission had to determine an appropriate ballot period and the eligibility of the appointed ballot agent, Democratic Outcomes Pty Ltd T/A CiVS (CiVS), to conduct the ballot.

The Deputy President of the Fair Work Commission found that the UWU had genuinely attempted to negotiate with Coles and that all statutory requirements were met for the proposed ballot. The Commission approved the use of CiVS as the ballot agent, as it had recently been approved under section 468A of the Act. The Commission set a ballot period of 15 working days from the date of the order, 27 July 2023. The Deputy President also noted that separate orders would be issued for the compulsory conciliation conference and that further directions might be provided to ensure meaningful negotiations between the parties.

In light of the findings, the Fair Work Commission granted the UWU's application for a protected action ballot order. The Commission determined that the UWU could proceed with the ballot to ascertain the members' views on protected action. The Commission also set a 15-working-day ballot period and assigned the matter to another member for the compulsory conciliation conference. Further directions were likely to be issued to ensure that both parties were prepared for meaningful negotiations during the conference.

United Workers' Union v Coles Group Supply Chain Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established