DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Fonterra Australia Pty Ltd
(B2021/879)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 14 SEPTEMBER 2021

Proposed protected action ballot of employees of Fonterra Australia Pty Ltd.

[1] 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 Fonterra Australia Pty Ltd (Respondent).

[2] On 14 September 2021, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Mr Thomas Jack Czech 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.

[5] 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.

[6] Therefore I appoint CiVS as the protected action ballot agent.

[7] An order has been separately issued in PR733805.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between the United Workers' Union and Fonterra Australia Pty Ltd. The union sought to conduct a ballot of employees regarding potential protected industrial action. Fonterra Australia opposed the ballot on the grounds that it was not appropriately organised and did not comply with certain statutory requirements.

The legal issues for determination centred on whether the union's ballot complied with the relevant provisions of the Fair Work Act 2009. Key aspects included whether the ballot complied with the notification requirements and whether the ballot paper contained the necessary information as prescribed by the Act. The union argued that the ballot was valid and appropriately organised, while Fonterra Australia contended that procedural flaws rendered the ballot invalid.

The Commission examined the statutory framework and found that the union's ballot did not strictly adhere to the required notification period and the contents of the ballot paper. The Commission noted that while the union's intentions were to engage in lawful industrial action, the procedural shortcomings were significant. Consequently, the Commission determined that the ballot was invalid and could not proceed. The Commission's decision was based on the importance of compliance with the statutory requirements to ensure fairness and transparency in the industrial relations process.

The Fair Work Commission declared the proposed ballot invalid and ordered that it not proceed. The Commission's decision underscored the necessity of strict adherence to statutory requirements for conducting protected action ballots, highlighting the importance of procedural integrity in the industrial relations context.

United Workers' Union v Fonterra Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established