United Workers' Union v Harvey Fresh (1994) Ltd Summary

[2022] FWC 2061

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Harvey Fresh (1994) Ltd

(B2022/1164)

VICE PRESIDENT CATANZARITI

SYDNEY, 3 AUGUST 2022

Proposed protected action ballot of employees of Harvey Fresh (1994) Ltd

This is an application by the United Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Harvey Fresh (1994) Ltd (Respondent).

On 2 August 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Louise Dillon of the Applicant declared on 29 July 2022, 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 PR744483.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union (the Applicant) made an application to the Fair Work Commission under section 437 of the Fair Work Act 2009 (Cth) for an order permitting a protected action ballot of certain employees of Harvey Fresh (1994) Ltd (the Respondent). The application was brought in response to the Respondent's refusal to reach agreement with the Applicant over a proposed agreement. The Commission was advised on 2 August 2022 that the Respondent did not oppose the application, and as such, the Vice President determined the matter on the papers without holding a hearing.

The legal issues that the Vice President was required to decide included whether there was a notification time in relation to the proposed agreement, and if the requirements of section 443(1) of the Act had been met. The Vice President found that there was a notification time, and that the Applicant had satisfied the requirements of section 443(1) of the Act. The Vice President was satisfied that the Applicant had been genuinely trying to reach agreement with the Respondent and had taken all necessary steps in bargaining with the Respondent.

The Vice President found that the Applicant had met all the requirements for a protected action ballot order under the Fair Work Act 2009 (Cth). The Vice President was satisfied that there was a notification time in relation to the proposed agreement, and that the requirements in section 443(1) of the Act had been met. The Vice President found that the Applicant had been genuinely trying to reach agreement with the Respondent and had taken all necessary steps in bargaining with the Respondent. In light of these findings, the Vice President decided to grant the Applicant's application for a protected action ballot order.

The Vice President issued an Order in PR744483 permitting the Applicant to hold a protected action ballot of certain employees of the Respondent. The Order was issued under section 437 of the Fair Work Act 2009 (Cth).

United Workers' Union v Harvey Fresh (1994) Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established