United Workers' Union v Longwarry Food Park Pty Ltd

[2023] FWC 2256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Longwarry Food Park Pty Ltd

(B2023/933)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 6 SEPTEMBER 2023

Proposed protected action ballot of employees of Longwarry Food Park Pty 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 Longwarry Food Park Pty Ltd (Longwarry Food or Employer).

On 6 September 2023, the Commission was advised that Longwarry did not, in effect, 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, Union 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 Longwarry Food, 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 T/A CiVS (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 28 September 2023.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR765891.

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 involved 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] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.

[2] This date was specified in the proposed order and is, in effect, sixteen (16) working days from the date effect of the Order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the United Workers' Union (UWU) for a protected action ballot order concerning certain employees of Longwarry Food Park Pty Ltd. The UWU sought to organise a ballot to enable the employees to vote on a proposed protected action, which was part of ongoing bargaining efforts for a new enterprise agreement. Longwarry Food Park Pty Ltd did not object to the application, leading the Commission to decide the matter based on the submitted documentation without a hearing.

The legal issues before the Commission were whether the UWU had fulfilled the prerequisites for a protected action ballot under the Fair Work Act 2009, specifically if the union had genuinely attempted to reach an agreement with the employer and if all procedural requirements had been met. The UWU submitted a declaration by Mr. David Harris, their Union Organiser, outlining the steps taken in bargaining and asserting their ongoing efforts to reach an agreement with Longwarry Food Park Pty Ltd. The Commission was satisfied that these requirements were met and that the proposed agreement had a notification period.

The Deputy President concluded that all conditions for a protected action ballot order were satisfied, and authorised Democratic Outcomes Pty Ltd T/A CiVS as the ballot agent. The Commission set 28 September 2023 as the closing date for voting, which also determined the ballot period for compulsory conciliation under the Act. This matter will be transferred to another Commission member to oversee the compulsory conciliation conference, ensuring all bargaining representatives are prepared for meaningful negotiations.

The Commission issued an order for the ballot period and a separate order to conduct the compulsory conciliation conference, with directions for the parties to attend prepared to negotiate effectively.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established