United Workers' Union v Mars Australia Pty Ltd T/A Mars Petcare Summary

[2023] FWC 2506

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union

Mars Australia Pty Ltd T/A Mars Petcare

(B2023/1029)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 29 SEPTEMBER 2023

Proposed protected action ballot of employees of Mars Australia Pty Ltd

This is an application by the United Workers' Union (UWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Mars Australia Pty Ltd T/A Mars Petcare (Mars Petcare or Employer).

On 28 September 2023, the Commission was advised that Mars Petcare, in effect, 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 Nicholas Gordon, Organiser of UWU, 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 Mars Petcare, 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 Australian Electoral Commission. 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 November 2023. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR766670.

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union (UWU) sought a protected action ballot order from the Fair Work Commission in relation to employees of Mars Australia Pty Ltd, trading as Mars Petcare. This application was made under section 437 of the Fair Work Act 2009, with the union asserting that it had been genuinely attempting to reach an agreement with the employer through bargaining processes. Mars Petcare did not object to the application, and as a result, the matter was decided on the papers without a hearing. The Deputy President Hampton of the Commission was satisfied, based on the provided evidence, that the union had met all the necessary requirements for a protected action ballot, including the notification time specified in section 443(1) of the Act.

The primary legal issue before the Court was whether the UWU had satisfied the prerequisites for a protected action ballot under the Fair Work Act. This involved confirming that the union had genuinely attempted to reach an agreement with the employer and that all procedural requirements had been adhered to. The declaration of Mr. Nicholas Gordon, the Organiser of UWU, provided the necessary evidence to demonstrate that the union had engaged in good faith bargaining. Furthermore, the Court needed to determine an appropriate closing date for the ballot, which was set for 10 November 2023, in accordance with section 443(3)(c) of the Act.

In granting the application, the Deputy President determined that the UWU had fulfilled all the requirements for a protected action ballot, thereby allowing the ballot to proceed. The Australian Electoral Commission was assigned the responsibility of conducting the ballot. Additionally, a compulsory conciliation conference was scheduled to be conducted by another member of the Commission, aimed at facilitating meaningful negotiations between the parties. This decision ensures that the employees of Mars Petcare will have the opportunity to vote on the proposed agreement, while also providing a platform for continued negotiation efforts to avoid potential industrial action.

United Workers' Union v Mars Australia Pty Ltd T/A Mars Petcare

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established