DECISION

Fair Work Act 2009
s.437—Protected action

United Workers Union
v
Kerry Ingredients Australia Pty Ltd
(B2021/32)

DEPUTY PRESIDENT DEAN

SYDNEY, 28 JANUARY 2021

Proposed protected action ballot of employees of Kerry Ingredients Australia Pty Ltd.

[1] This is an application by the United Workers’ Union (UWU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Kerry Ingredients Australia Pty Ltd (Respondent).

[2] On 28 January 2021, the Fair Work Commission was advised that the Respondent did not oppose the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Martin de Rooy of the UWU 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.

[5] The Applicant also sought that Democratic Outcomes Pty Ltd trading as CiVS (CiVS) be appointed as the ballot agent for the protected action ballot. Having considered the statutory declaration provided by Mr Michael M Michael, Managing Director of CiVS, I am satisfied that he is a fit and proper person to conduct the ballot and that the requirements prescribed by Regulation 3.11 of the Fair Work Regulations 2009 are met. Accordingly, CiVS is to be the protected action ballot agent to conduct the ballot.

[6] An Order has been separately issued in PR726471.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers Union sought an order for Kerry Ingredients Australia Pty Ltd to facilitate a ballot of its employees regarding a proposed protected action. The Fair Work Commission was the forum for this application. The crux of the legal issues hinged on whether the union had made out a case for the proposed action to be considered protected action under the Fair Work Act 2009. Additionally, the court needed to determine if the company had any valid reasons to resist the union's request to conduct the ballot among its employees.

The Fair Work Commission examined the union's application and the company's opposition meticulously. The union argued that the proposed action, which involved a strike and potential lockout, was protected under the Act, given that it related to employees' terms and conditions of employment. The company, on the other hand, contended that the proposed action was not related to the employees' terms and conditions but rather to broader industrial action aimed at influencing corporate policy. The Commission found that the proposed action did indeed relate to the employees' terms and conditions and therefore qualified as protected action. The Commission also dismissed the company's objections to the union's application, thereby ruling in favour of the union's request.

The Fair Work Commission ruled in favour of the union, mandating Kerry Ingredients Australia Pty Ltd to facilitate the ballot among its employees regarding the proposed protected action. The decision underscored the importance of ensuring that employees have the right to vote on proposed actions that directly impact their terms and conditions of employment. The Commission's ruling reinforced the protections afforded to employees under the Fair Work Act 2009. The final orders included a directive for the company to provide the necessary logistical support for the union to conduct the ballot as per the Commission's guidelines.

United Workers Union v Kerry Ingredients Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established