United Workers' Union v Mars Australia Pty Ltd

[2023] FWC 1216

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Mars Australia Pty Ltd

(B2023/482)

VICE PRESIDENT CATANZARITI

SYDNEY, 26 MAY 2023

Proposed protected action ballot of employees of Mars Australia Pty Ltd

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

On 22 May 2023, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Erryn Cresshull of the Applicant declared on 19 May 2023, 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.

An Order has been separately issued in PR762460.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union (Applicant) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for an order permitting a ballot of certain employees of Mars Australia Pty Ltd (Respondent) to determine whether they would support protected action. The application was made in the context of ongoing negotiations between the Applicant and the Respondent, aiming to reach an agreement regarding employment terms. The Respondent did not oppose the application, leading the Commission to determine the matter based on the documents submitted without a formal hearing.

The central legal issues before the Commission involved verifying whether the conditions set out in section 443(1) of the Act were met, specifically confirming that the notification time for the proposed agreement was correctly observed and that the union had genuinely tried to reach an agreement with the employer. The Commission had to ensure that the union's actions were in compliance with the statutory requirements before allowing the ballot to proceed.

The Commission, after reviewing the material provided, including the statutory declaration by Erryn Cresshull of the Applicant, found that the union had indeed taken the necessary steps to engage in good-faith bargaining with the employer and that the notification period had been appropriately adhered to. The Vice President concluded that all statutory prerequisites for the ballot were fulfilled. Consequently, the Commission granted the application, allowing the union to proceed with the proposed ballot among the employees.

The final orders issued by the Fair Work Commission permitted the United Workers' Union to conduct the ballot as requested, enabling the employees of Mars Australia Pty Ltd to express their views on the proposed agreement. The decision underscores the importance of ensuring that both parties in industrial disputes engage in genuine negotiations and comply with legal requirements when seeking to resolve employment-related issues.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established