United Workers' Union v Kellogg (Aust) Pty Ltd T/A Kellogg's Summary

[2025] FWC 260

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Kellogg (Aust) Pty Ltd T/A Kellogg’s

(B2025/166)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 29 JANUARY 2025

Proposed protected action ballot of employees of Kellogg (Aust) Pty Ltd T/A Kellogg’s

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 Kellogg (Aust) Pty Ltd T/A Kellogg’s (Kellogg’s or Employer).

On 29 January 2025, the Commission was advised that the Employer, in effect, 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 Leonidas Papanastasiou, Lead 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 Kellogg’s, 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 (AEC).

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 by 13 March 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR783772.

This matter will be assigned to another 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 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, 31 working days from the making of the Order and was the date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the United Workers' Union for an order under section 437 of the Fair Work Act 2009, to allow a ballot of certain employees of Kellogg (Aust) Pty Ltd, trading as Kellogg’s, in relation to protected industrial action. The employer did not object to the application, and the matter was determined on the papers without a hearing. The Commission was satisfied that the union had been genuinely attempting to reach an agreement with the employer, and that the notification time in relation to the proposed agreement had been met, with all requirements of section 443(1) of the Act fulfilled. The ballot will be conducted by the Australian Electoral Commission and is set to close on 13 March 2025.

The primary legal issue before the Commission was whether the union had met the criteria set out in section 437 of the Fair Work Act to allow a ballot for protected industrial action. This involved determining if the union had genuinely attempted to negotiate an enterprise agreement with the employer, and if the notification time had been met. Additionally, the Commission had to consider the appropriateness of the proposed ballot date.

The Commission found that the union had indeed met the criteria under section 437 of the Act, having provided evidence of genuine negotiation attempts and compliance with the notification time. The Deputy President concluded that all statutory requirements had been satisfied, and thus, the application should be granted. The decision included setting the ballot closing date as 13 March 2025, which aligns with the 31 working days from the making of the order as requested in the application. The Commission also assigned this matter to another Member for the compulsory conciliation conference under section 448A, with further orders and directions to be issued to ensure meaningful negotiations between the parties.

United Workers' Union v Kellogg (Aust) Pty Ltd T/A Kellogg's

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established