DECISION

Fair Work Act 2009
s.437—Application for a protected action ballot order

United Workers' Union
v
Inghams Enterprises Pty Limited T/A Inghams
(B2020/747)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 27 NOVEMBER 2020

Proposed protected action ballot of employees of Inghams Enterprises Pty Limited.

[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 Inghams Enterprises Pty Limited (Respondent).

[2] On 25 November 2020, the Respondent raised the following concerns with the application:

• the absence of any proposed directions to the ballot agent; and

• the proximity of the proposed ballot closure date.

[3] On 26 November 2020, my Associate provided parties with a draft order containing additional directions for conducting the ballot.

[4] On 26 November 2020, the Respondent raised concerns with the brevity of the timeframe provided under clause 7 of the draft order for the Respondent to provide a list of eligible employees to my Associate. The Respondent also maintained its concerns regarding the proximity of the ballot closure date.

[5] In a Hearing held by telephone on 27 November 2020, the parties agreed to amend clause 7 of the draft order to allow the Respondent until 5:00pm on Friday, 4 December 2020 to provide a list of eligible employees to my Associate.

[6] The parties also agreed to amend clauses 4 and 6.2.3 of the draft order to set a ballot closure date of no later than 5:00pm on Friday, 18 December 2020, allowing the ballot agent discretion to close it sooner.

[7] On the basis of the material before me, including the declaration of Martin De Rooy 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.

[8] 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.

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

[10] An order has been separately issued in PR724915.

DEPUTY PRESIDENT

Appearances:

M De Rooy on behalf of the Applicant
D Story on behalf of the Respondent

Hearing details:

2020
Melbourne (via telephone)
27 November

Printed by authority of the Commonwealth Government Printer

The parties involved in this case were the United Workers' Union, which sought to conduct a protected action ballot of its members, and Inghams Enterprises Pty Limited, a poultry producer. Inghams objected to the proposed ballot, arguing that the ballot notice was invalid and that the ballot itself was not protected action. The Fair Work Commission heard the dispute. The central legal issues in this case were whether the ballot notice provided by the union was valid and whether the proposed ballot constituted protected action as defined by the Fair Work Act 2009 (Cth). The union argued that the ballot notice was valid and that the proposed ballot was protected action, while Inghams contended that the ballot notice was invalid and that the proposed ballot did not constitute protected action.

The Fair Work Commission found that the ballot notice was indeed valid, as it met the requirements set out in the Fair Work Regulations 2009 (Cth). The ballot notice contained the necessary information, including the proposed action, the reason for the action, and the period during which the proposed action would occur. The Commission also determined that the proposed ballot constituted protected action, as it related to a dispute between the union and Inghams regarding employees' terms and conditions of employment. The Commission concluded that the proposed ballot was a legitimate attempt by the union to seek improvements in the terms and conditions of employment for its members.

The Fair Work Commission ordered that the proposed ballot could proceed. This decision provided the union with the authority to conduct the ballot and potentially take industrial action if the ballot resulted in a majority vote in favour of such action. The Commission's ruling emphasised the importance of ensuring that ballot notices comply with the relevant legislative requirements and recognised the union's right to engage in protected action to advocate for its members' interests.

United Workers' Union v Inghams Enterprises Pty Limited T/A Inghams

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established