United Workers' Union v Lipa Pharmaceuticals Ltd Summary

[2024] FWC 1073

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Lipa Pharmaceuticals Ltd

(B2024/470)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 24 APRIL 2024

Proposed protected action ballot of employees of Lipa Pharmaceuticals Ltd

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 Lipa Pharmaceuticals Ltd (Lipa or Employer).

On 23 April 2024, the Commission was advised that the Employer 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 Majaraya Buenaflor, 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 it, 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 (CiVS). CiVS has 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) of the Act, the Commission has determined that the date by which voting is to close is 10 May 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR774036.

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 for 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] [2023] FWC 1400.

[2] This is, in effect, ten (10) working days from the date of the Order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union (UWU) applied to the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Lipa Pharmaceuticals Ltd. The application was made to determine whether the proposed industrial action by the employees could proceed under the provisions of the Act. Lipa Pharmaceuticals Ltd did not object to the application, and the matter was decided on the papers without a hearing.

The legal issues before the FWC included whether the UWU had genuinely attempted to reach an agreement with Lipa Pharmaceuticals Ltd, and if all the statutory requirements for a protected action ballot under the Fair Work Act had been met. The UWU had to demonstrate that it had taken necessary steps in bargaining with the employer and that there was a notification time for the proposed agreement. The FWC also needed to ensure that the ballot agent, Democratic Outcomes Pty Ltd (CiVS), was approved and authorised to conduct the ballot.

The Deputy President of the FWC, Hampton, concluded that the UWU had genuinely tried to reach an agreement with Lipa Pharmaceuticals Ltd and that all requirements under section 443(1) of the Act had been satisfied. The declaration by Majaraya Buenaflor, the UWU Organiser, supported the union's efforts in bargaining. Furthermore, CiVS was approved as an eligible ballot agent under section 468A of the Act, thus authorised to conduct the ballot. The Deputy President set the closing date for voting as 10 May 2024, establishing the ballot period under section 448A(2) of the Act.

The FWC issued an Order for the ballot to proceed and assigned the matter to another Member for a compulsory conciliation conference under section 448A. This conference required the attendance of all bargaining representatives for the proposed enterprise agreement, with likely directions to ensure meaningful negotiations.

United Workers' Union v Lipa Pharmaceuticals Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established