United Workers' Union v CW Management Pty Ltd

[2023] FWC 875

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

CW Management Pty Ltd

(B2023/337)

DEPUTY PRESIDENT CLANCY

ADELAIDE, 14 APRIL 2023

Proposed protected action ballot of employees of CW Management 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 CW Management Pty Ltd (Respondent).

On 13 April 2023 my Associate was advised that the Respondent 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 Ms Anna Thwaites 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.

An order has been separately issued in PR761067.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union (Applicant) filed an application under section 437 of the Fair Work Act 2009 against CW Management Pty Ltd (Respondent) seeking an order for a protected action ballot for certain employees. The ballot was proposed to facilitate industrial action in the context of ongoing negotiations between the Union and the Respondent. The application was brought before Deputy President Clancy of the Fair Work Commission in Adelaide on 14 April 2023. Notably, the Respondent did not object to the application, leading Deputy President Clancy to decide to determine the matter on the papers without a formal hearing.

The primary legal issue before the court was whether the United Workers' Union had met the statutory requirements to hold a protected action ballot as stipulated in the Fair Work Act. Specifically, the court needed to ascertain if the Union had genuinely attempted to reach an agreement with the Respondent and if the notification time for the proposed agreement had been met. The Union's declaration, submitted by Ms Anna Thwaites, outlined the steps taken in bargaining and affirmed the Union's genuine efforts to reach an agreement. The court's task was to review this evidence and decide if the Union had satisfied the prerequisites for a protected action ballot.

After reviewing the materials presented, Deputy President Clancy concluded that the United Workers' Union had indeed fulfilled the necessary criteria under section 443(1) of the Fair Work Act. The declaration provided by Ms Thwaites, along with the evidence of the Union's efforts to reach an agreement, led the Deputy President to be satisfied that the notification time was appropriate and that the Union had acted in good faith. Consequently, the court granted the application for a protected action ballot order. A separate order was issued under PR761067, formalising the court's decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established