United Workers' Union v Cripps Nubake Pty Limited Summary

[2024] FWC 3314

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Cripps Nubake Pty Limited

(B2024/1559)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 29 NOVEMBER 2024

Proposed protected action ballot of employees of Cripps Nubake Pty 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 Cripps Nubake Pty Limited (Cripps Nubake 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 Bishwoksen Adhikari, 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 Cripps Nubake, 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 TrueVote Pty Ltd (TrueVote). TrueVote 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 PR781837.

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 Fair Work Commission has considered an application by the United Workers’ Union for a protected action ballot order in relation to employees of Cripps Nubake Pty Limited. The application was made under section 437 of the Fair Work Act 2009 and concerns the proposed protected action ballot. The Union has alleged that it has been genuinely attempting to reach an agreement with the employer and has outlined the steps taken in bargaining. Cripps Nubake did not object to the application, allowing the matter to be determined on the papers without a hearing.

The legal issues before the Commission included whether the Union had met the requirements of section 443(1) of the Act and whether the notification time for the proposed agreement was valid. Additionally, the Commission needed to determine the closing date for the ballot, as set out in section 443(3)(c) of the Act. Based on the evidence provided, including the declaration from the Union organiser, the Commission found that the Union had indeed met all the necessary requirements for the ballot.

The Deputy President was satisfied with the Union's efforts in bargaining and the steps taken to reach an agreement with Cripps Nubake. The Commission concluded that the notification time in relation to the proposed agreement was valid and that all requirements under section 443(1) of the Act had been met. The Deputy President determined that the voting for the ballot must close on 13 December 2024, which aligns with the specific date sought in the application. A separate order has been issued in PR781837, and the matter will be assigned to another Member of the Commission for a compulsory conciliation conference. This Member will require the attendance of all bargaining representatives and likely issue directions to ensure meaningful negotiations.

United Workers' Union v Cripps Nubake Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established