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

[2022] FWC 2169

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Coles Group Supply Chain Pty Ltd

(B2022/1229)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 17 AUGUST 2022

Proposed protected action ballot of employees of Coles Group Supply Chain Pty Ltd.

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 Coles Group Supply Chain Pty Ltd (the Respondent).

On 16 August 2022, my Associate was advised that the Respondent does 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 Ms Alycia Economidis 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 Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M Michael, the Managing Director of CiVS has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVS has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

Therefore I appoint CiVS as the protected action ballot agent.

An order has been separately issued in PR744835.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has dealt with an application by the United Workers' Union for a protected action ballot order concerning certain employees of Coles Group Supply Chain Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, with the union seeking to conduct a protected action ballot to potentially undertake industrial action. The union had sought to appoint Democratic Outcomes Pty Ltd, trading as CiVS, as the ballot agent, a request that was not opposed by Coles Group Supply Chain Pty Ltd.

The legal issues before the Commission were whether the union had satisfied the preconditions for a protected action ballot, including the notification time for the proposed agreement and the union's genuine attempts to reach an agreement with Coles Group Supply Chain Pty Ltd. Additionally, the court had to determine whether CiVS was a fit and proper person to act as the ballot agent.

In its decision, the Commission found that the union had fulfilled the necessary preconditions for the ballot, based on the declaration provided by Ms Alycia Economidis of the union. The Commission was satisfied that the union had been genuinely attempting to reach an agreement and that the notification time for the proposed agreement had been met. Regarding the appointment of CiVS as the ballot agent, the Commission accepted that CiVS, along with Mr Michael, its Managing Director, was a suitable and capable entity to conduct the ballot, ensuring the secrecy and security of the votes and conducting the ballot expeditiously. The Commission also noted that CiVS had agreed to comply with the Privacy Act 1998 in handling information relating to the protected action ballot.

Accordingly, the Commission appointed CiVS as the protected action ballot agent for the union's proposed industrial action.

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