United Workers' Union v Linfox Australia Pty Ltd Summary

[2022] FWC 2174

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Linfox Australia Pty Ltd

(B2022/1233)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 17 AUGUST 2022

Proposed protected action ballot of employees of Linfox Australia Pty Ltd.

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 Linfox Australia Pty Ltd (the Respondent).

On 16 August 2022, my Associate was advised that the Respondent does 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 Ms Tegan Milliken 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.

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.

Therefore I appoint CiVS as the protected action ballot agent.

An order has been separately issued in PR744854.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union, represented by Ms Tegan Milliken, applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Linfox Australia Pty Ltd. The application was made without objection from Linfox Australia Pty Ltd. The primary legal issue for the Deputy President to consider was whether the union had fulfilled the necessary conditions for a protected action ballot, including demonstrating genuine efforts to reach an agreement with the employer and meeting the notification time requirements as per section 443(1) of the Act. Additionally, the court had to determine if the proposed ballot agent, Democratic Outcomes Pty Ltd trading as CiVS, was fit and proper to conduct the ballot, and if they could ensure the secrecy and security of the votes.

The Deputy President, after reviewing the material provided, including the declaration of Ms Tegan Milliken, was satisfied that the union had genuinely attempted to reach an agreement with Linfox Australia Pty Ltd and that the notification time had been met. The court also found that Democratic Outcomes Pty Ltd trading as CiVS, proposed as the ballot agent, was a fit and proper person to conduct the ballot. The Managing Director of CiVS, Mr Michael M Michael, provided a statutory declaration confirming his role and relevant experience in conducting such ballots. The court accepted that CiVS was capable of ensuring the secrecy and security of the votes and could conduct the ballot expeditiously. Consequently, the Deputy President appointed CiVS as the protected action ballot agent.

The Deputy President's decision was based on the evidence presented and the absence of objections from Linfox Australia Pty Ltd. The court determined that the conditions for a protected action ballot were satisfied, and the proposed ballot agent was suitable for the task. An order was issued separately to appoint CiVS as the protected action ballot agent. This decision underscores the importance of genuine bargaining efforts and the suitability of the ballot agent in ensuring the integrity of the ballot process.

United Workers' Union v Linfox Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established