United Workers' Union v JBS Australia Pty Limited Summary

[2023] FWC 1800

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

JBS Australia Pty Limited

(B2023/734)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 24 JULY 2023

Proposed protected action ballot of employees of JBS Australia Pty Limited

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 the Respondent, JBS Australia Pty Limited (JBS Australia or Employer).

On 24 July 2023, following confirmation about the correct ABN and some exchanges between the parties as to the form of the Order sought, the Commission was ultimately advised that JBS Australia did not object to 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 declaration of Mr Liban Ibrahim, UWU Organiser, 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 JBS Australia, 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 recently 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, a ballot period of ten (10) working days from the date of the Order (24 July 2023) has been approved by the Commission.

An order has been separately issued in PR764474.

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

[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 heard an application from the United Workers' Union for a protected action ballot order concerning certain employees of JBS Australia Pty Limited. The Union sought this order under section 437 of the Fair Work Act 2009, indicating a desire to conduct a ballot among employees regarding potential protected actions. The application was submitted after the Union had engaged in bargaining with JBS Australia, asserting it had been genuinely attempting to reach an agreement with the employer. JBS Australia did not oppose the application, leading the Commission to decide the matter on the submitted documents without a formal hearing.

The legal issues before the Commission involved confirming whether the Union had met the necessary prerequisites for a protected action ballot, including ensuring a notification period was in place and that all conditions stipulated in section 443(1) of the Fair Work Act had been satisfied. The Union's declaration by Mr. Liban Ibrahim, an organiser, outlined the bargaining process and the Union's efforts to reach an agreement with JBS Australia. Additionally, the Commission had to verify that the ballot agent, Democratic Outcomes Pty Ltd T/A CiVS, was approved and authorised under section 468A of the Act to conduct the ballot.

Upon reviewing the provided evidence and the Union's declaration, the Deputy President concluded that the Union had met all the requirements for a protected action ballot. The Commission approved the proposed ballot agent, CiVS, and set a ballot period of ten working days from the date of the order, which was 24 July 2023. Furthermore, an order was issued separately in PR764474, and the matter was assigned to another member of the Commission for the compulsory conciliation conference under section 448A. This decision ensured that the parties would be prepared for meaningful negotiations at the conference.

United Workers' Union v JBS Australia Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established