United Workers' Union v Lion Dairy and Drinks Foods Limited T/A Lion

[2022] FWC 3258

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Lion Dairy and Drinks Foods Limited T/A Lion

(B2022/1822)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 12 DECEMBER 2022

Proposed protected action ballot of employees of Lion Dairy and Drinks Foods Limited T/A Lion.

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 Lion Dairy and Drinks Foods Limited T/A Lion (Respondent).

On 12 December 2022, my Associate was advised that the Respondent 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 David Harris 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 PR748800.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of United Workers' Union v Lion Dairy and Drinks Foods Limited T/A Lion, decided by the Fair Work Commission, involves an application by the United Workers’ Union (Applicant) for a protected action ballot order concerning certain employees of Lion Dairy and Drinks Foods Limited T/A Lion (Respondent). The Applicant sought the order under section 437 of the Fair Work Act 2009, which pertains to protected action ballots in the context of industrial disputes. The matter was brought before the Deputy President Clancy on 12 December 2022, with the Respondent not objecting to the application, leading to the decision being made on the papers without a hearing.

The primary legal issues the court had to address were whether the notification time for the proposed agreement existed and whether the requirements of section 443(1) of the Fair Work Act were fulfilled. Additionally, the Applicant requested that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot, with Democratic Outcomes Pty Ltd trading as CiVS (CiVS) being proposed. The court had to determine if CiVS was a fit and proper person to conduct the ballot, ensuring the secrecy and security of the votes and the expeditious conduct of the ballot. The court also needed to ensure compliance with the Privacy Act 1998 concerning the handling of information relating to the protected action ballot.

The court found that the notification time in relation to the proposed agreement existed, and that the requirements of section 443(1) of the Fair Work Act were met. The Applicant had provided a declaration by Mr David Harris that set out the steps taken in bargaining with the Respondent, and it was found that the Applicant had been genuinely trying to reach an agreement with the Respondent. Furthermore, the court was satisfied that CiVS was a fit and proper person to conduct the ballot, based on a statutory declaration by Mr Michael M Michael, the Managing Director of CiVS, who outlined his relevant experience in conducting protected action ballots. CiVS agreed to be the protected action ballot agent and committed to complying with the Privacy Act 1998. Consequently, CiVS was appointed as the protected action ballot agent, and an order was issued in PR748800.

This decision underscores the Fair Work Commission's role in overseeing industrial disputes and ensuring that the rights of employees and employers are balanced through the provision of protected action ballots, while also ensuring the integrity of the ballot process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established