United Workers' Union v DuroColour Australia Pty Ltd T/A DuroColour Australia

[2025] FWC 159

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

DuroColour Australia Pty Ltd T/A DuroColour Australia

(B2025/103)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 16 JANUARY 2025

Proposed protected action ballot of employees of DuroColour Australia Pty Ltd T/A DuroColour Australia

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 DuroColour Australia Pty Ltd T/A DuroColour Australia (DuroColour or Employer).

On 16 January 2025, 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 Liam Armstrong, 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 DuroColour, 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 Australian Electoral Commission (AEC).

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 28 February 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR783383.

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, 30 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union (UWU) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of DuroColour Australia Pty Ltd T/A DuroColour Australia (DuroColour). The application was made on the basis that the UWU had been genuinely attempting to reach an agreement with DuroColour but had been unsuccessful. The employer did not object to the application, allowing the Deputy President to proceed with the determination on the papers without a hearing.

The legal issues before the court were whether the UWU had fulfilled the requirements of section 443(1) of the Fair Work Act and if all necessary steps had been taken for a notification time in relation to the proposed agreement. The declaration of Liam Armstrong, an Organiser for the UWU, was presented as evidence that the union had been genuinely trying to reach an agreement with DuroColour. The Deputy President was satisfied that the UWU had met all the requirements and that a notification time existed, thereby permitting the application to proceed.

The Deputy President determined that the ballot would be conducted by the Australian Electoral Commission (AEC) and set the closing date for voting as 28 February 2025. This date was consistent with the 30 working days from the making of the order, as requested in the application. Additionally, the Deputy President assigned the matter to another member of the Commission to conduct a compulsory conciliation conference under section 448A of the Act. This member would issue an order requiring the attendance of all bargaining representatives at the conference and likely issue directions to ensure meaningful negotiations.

This decision ensures that the ballot process for protected action proceeds as per the Fair Work Act, with specific timelines set for voting and the conciliation conference. The Deputy President's ruling on the application and the setting of the ballot period are essential steps in the process of reaching a potential enterprise agreement between the UWU and DuroColour.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established