United Workers' Union v HS Fresh Food Pty Ltd Summary

[2023] FWC 2408

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union

HS Fresh Food Pty Ltd

(B2023/997)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 20 SEPTEMBER 2023

Proposed protected action ballot of employees of HS Fresh Food Pty Ltd

This is an application by the United Workers’ Union (UWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of HS Fresh Food Pty Ltd (HS Fresh Food or Employer).

On 19 September 2023, the Commission was advised that HS Fresh Food, in effect, did not object to the Application. However, this was in the context of an earlier indication that it held concerns about the matter.

In the circumstances, I decided to conduct a short hearing today to confirm the parties’ positions and ensure that there was an understanding about the processes to follow. Ultimately, the Application was not contested.

On the basis of the material before me, including the declaration of Mr Benjamin Reichstein, Organiser on behalf of the UWU, 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 HS Fresh Food, 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. 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 2 November 2023.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR766361.

This matter will be assigned to a 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] This is, in effect, 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the United Workers' Union (UWU) applied for a protected action ballot order concerning employees of HS Fresh Food Pty Ltd (HS Fresh Food). The application was made under section 437 of the Fair Work Act 2009. HS Fresh Food indicated it did not object to the application, despite earlier concerns. A short hearing was conducted to confirm the parties' positions and to ensure there was a mutual understanding of the processes involved. Ultimately, the application was not contested.

The legal issues before the Commission were whether the UWU had met all requirements for a protected action ballot under section 443(1) of the Fair Work Act. Specifically, the Commission needed to determine if there was a notification time in relation to the proposed agreement and whether the UWU had genuinely tried to reach an agreement with HS Fresh Food. The Commission considered the declaration of Mr Benjamin Reichstein, the Organiser on behalf of the UWU, which detailed the steps taken in bargaining with the employer and the union's efforts to reach an agreement.

The Deputy President of the Commission was satisfied that the UWU had met all requirements for the ballot, including the notification time and genuine efforts in bargaining. The Deputy President ordered that the ballot be conducted by the Australian Electoral Commission, with voting to close on 2 November 2023, which is 30 working days from the making of the order. The Commission also assigned a Member to conduct the compulsory conciliation conference under section 448A of the Act, and Directions were to be issued to ensure the parties were ready for meaningful negotiations.

The final orders included the determination of the ballot closing date and the assignment of a Member to oversee the compulsory conciliation conference. This ensures that the process for reaching an agreement between the UWU and HS Fresh Food continues in a structured and regulated manner.

United Workers' Union v HS Fresh Food Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established