United Workers' Union v Fonterra Australia Pty Ltd

[2023] FWC 2253

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Fonterra Australia Pty Ltd

(B2023/932)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 6 SEPTEMBER 2023

Proposed protected action ballot of employees of Fonterra Australia Pty Ltd

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 Fonterra Australia Pty Ltd (Fonterra or Employer).

On 6 September 2023, the Commission was advised that Fonterra did not, in effect, 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 David Bish, 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 Fonterra, 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 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) of the Act, the Commission has determined that the date by which voting is to close is 28 September 2023.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR765879.

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 involved 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] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[2] This date was specified in the proposed order and is, in effect, sixteen (16) working days from the date effect of the Order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has been asked to approve a protected action ballot by the United Workers' Union in relation to certain employees of Fonterra Australia Pty Ltd. The union applied under s.437 of the Fair Work Act 2009 for an order to conduct the ballot, and Fonterra did not object to the application. The Deputy President decided to hear the matter on the papers and found that the union had met all the requirements for a protected action ballot, including reaching a proposed agreement and providing notification time. The ballot will be conducted by Democratic Outcomes Pty Ltd T/A CiVS, an approved agent under the Act. The Deputy President set the closing date for voting as 28 September 2023, which also sets the ballot period for the purpose of the Act. An Order was separately issued in PR765879, and the matter will be assigned to another Member of the Commission to conduct the compulsory conciliation conference. The parties will be required to attend the conference ready to conduct meaningful negotiations.

The Fair Work Commission was required to decide whether the United Workers' Union had met the requirements for a protected action ballot under the Fair Work Act 2009. The union had applied for an order to conduct a ballot in relation to certain employees of Fonterra Australia Pty Ltd. Fonterra did not object to the application. The Deputy President found that the union had met all the requirements for a protected action ballot, including reaching a proposed agreement and providing notification time. The Deputy President was satisfied that the union had been genuinely trying to reach agreement with Fonterra and that all of the requirements in s.443(1) of the Act had been met.

The Fair Work Commission determined that the United Workers' Union had met all the requirements for a protected action ballot under the Fair Work Act 2009. The Deputy President found that the union had reached a proposed agreement with Fonterra Australia Pty Ltd, provided notification time, and was genuinely trying to reach agreement. The Deputy President was satisfied that all of the requirements in s.443(1) of the Act had been met. The Deputy President set the closing date for voting as 28 September 2023, which also sets the ballot period for the purpose of the Act. An Order was separately issued in PR765879, and the matter will be assigned to another Member of the Commission to conduct the compulsory conciliation conference.

The Fair Work Commission made an Order approving the protected action ballot by the United Workers' Union in relation to certain employees of Fonterra Australia Pty Ltd. The ballot will be conducted by Democratic Outcomes Pty Ltd T/A CiVS, an approved agent under the Act. The closing date for voting is 28 September 2023. The matter will be assigned to another Member of the Commission to conduct the compulsory conciliation conference. The parties will be required to attend the conference ready to conduct meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established