United Workers' Union v Martin-Brower Australia Pty Ltd Summary

[2024] FWC 2964

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Martin-Brower Australia Pty Ltd

(B2024/1397)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 25 OCTOBER 2024

Proposed protected action ballot of employees of Martin-Brower Australia 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 Martin-Brower Australia Pty Ltd (Martin-Brower or Employer).

On 25 October 2024, the Commission was advised that the Employer, in effect, did not object to the Application as amended.

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 Chris Garvin, 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 Martin-Brower, 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 (AEC).

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 6 December 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR780607.

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 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] This is, in effect, 30 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the United Workers' Union for a protected action ballot order against Martin-Brower Australia Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, seeking authorisation for a ballot to allow employees to take protected industrial action. The Union argued it had engaged in good faith bargaining with the employer but could not reach an agreement, necessitating the ballot. The employer did not object to the application, leading the Deputy President to decide the matter on the submitted documents without a hearing.

The legal issues before the Commission included whether the Union had genuinely attempted to reach an agreement and if the statutory requirements for a protected action ballot were fulfilled. The Commission examined the Union's declaration, which outlined the bargaining process and efforts to reach an agreement, and concluded that all conditions under section 443(1) of the Act were met. The Deputy President was satisfied that there was a notification time for the proposed agreement and that the Union had genuinely attempted to negotiate.

Following the assessment, the Commission granted the Union's application, determining the closing date for voting in the ballot to be 6 December 2024. This date was set to allow for a 30 working-day period from the order's issuance, aligning with the Union's request. The Australian Electoral Commission was designated to conduct the ballot. Additionally, the matter was assigned to another Commission member for a compulsory conciliation conference under section 448A, with orders to ensure all bargaining representatives attend and are prepared for meaningful negotiations.

The final orders included the authorisation of the ballot and the setting of the closing date for voting. Further, the Commission issued an order for a compulsory conciliation conference, requiring the attendance of all bargaining representatives and likely issuing directions to ensure effective negotiations. This comprehensive approach aims to facilitate a resolution while allowing employees to exercise their rights under the Fair Work Act.

United Workers' Union v Martin-Brower Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established