United Workers' Union v Global Retail Logistics Pty Ltd

[2023] FWC 1937

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Global Retail Logistics Pty Ltd

(B2023/796)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 7 AUGUST 2023

Proposed protected action ballot of employees of Global Retail Logistics 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 Global Retail Logistics Pty Ltd (Global Retail or Employer).

On 4 August 2023, the Commission was advised that Global Retail had certain objections to the form of order proposed in the Application and this matter was subsequently heard by the Commission on 7 August 2023. During the hearing, the full terms of an amended order were agreed by the parties, and this has been reflected in the Order ultimately made by the Commission.

On the basis of the material before me, including the declaration of Mr Mick Power, UWU Coordinator, 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 Global Retail, 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) and s.448A(2) of the Act, the date by which voting in the ballot is to close (the ballot period) is 22 August 2023. The manner of specifying, and the length of, the ballot period was also the subject of agreement between the parties. Other consequential changes have been made in the final Order.

An Order has been separately issued in PR764903.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference and this Member will issue the Order requiring attendance 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

Appearances:

R Wyllie, of the United Workers Union.

D Feldman of HR Legal, with permission, with D Venes for Global Retail Logistics Pty Ltd.

Hearing details:

2023
August 7
by MS Teams Video.

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) heard an application by the United Workers’ Union (UWU) under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Global Retail Logistics Pty Ltd (Global Retail). The application was made in light of the union's assertion that it had been genuinely trying to reach agreement with Global Retail, and that a notification time for the proposed agreement had been met. Global Retail had objections to the form of order proposed in the application, leading to a hearing on 7 August 2023. During this hearing, the parties agreed on an amended form of order, which was subsequently made by the Commission.

The legal issues before the Commission were whether the UWU had met all the requirements under section 443(1) of the Act, including demonstrating that it had been genuinely trying to reach agreement with Global Retail, and whether the proposed ballot order was appropriate. The Commission considered the declaration of Mr Mick Power, the UWU Coordinator, which detailed the union's bargaining efforts and the satisfaction of the notification time requirement. The Commission also examined the suitability of the ballot agent, Democratic Outcomes Pty Ltd T/A CiVS (CiVS), which had been approved under section 468A of the Act. The manner and length of the ballot period were also subjects of agreement between the parties.

The Deputy President found that the UWU had met all the requirements for the ballot order, and that the agreed form of order was appropriate. The Commission was satisfied that the UWU had been genuinely trying to reach an agreement with Global Retail and that all the statutory requirements had been met. The ballot would be conducted by CiVS, which had been approved as a ballot agent, and the ballot period would close on 22 August 2023. The Commission issued an Order reflecting the agreed terms, and assigned the matter to another Member for the compulsory conciliation conference under section 448A. Directions may be issued to ensure that the parties attend the conference prepared 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