United Workers' Union v Mondelez Australia (Foods) Ltd

[2022] FWC 2363

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Mondelez Australia (Foods) Ltd

(B2022/1329)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 5 SEPTEMBER 2022

Proposed protected action ballot of employees of Mondelez Australia (Foods) Ltd.

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

On 5 September 2022, my Associate was advised that the Respondent does 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 Ms Tasha Linke of the Applicant 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.

The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M Michael, the Managing Director of CiVS has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVS has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

Therefore I appoint CiVS as the protected action ballot agent.

An order has been separately issued in PR745526.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application from the United Workers' Union for a protected action ballot order in relation to certain employees of Mondelez Australia (Foods) Ltd. The application was made under section 437 of the Fair Work Act 2009. The dispute centered on the proposed protected action ballot of the employees. The court was required to decide whether the union had genuinely tried to reach an agreement with the employer, and whether the proposed ballot agent, Democratic Outcomes Pty Ltd trading as CiVS, was fit and proper to conduct the ballot.

The Deputy President of the Fair Work Commission was satisfied that the union had genuinely tried to reach an agreement with the employer, and that the notification time in relation to the proposed agreement had been met. The Deputy President was also satisfied that CiVS was a fit and proper person to conduct the ballot and that Mr Michael, the Managing Director of CiVS, and CiVS were capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVS had agreed to be the protected action ballot agent and Mr Michael and CiVS were bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

The Deputy President appointed CiVS as the protected action ballot agent. An order was separately issued in PR745526. The decision was made without a hearing as the employer did not object to the application. The Deputy President was satisfied that the requirements in section 443(1) of the Act had been met and that CiVS was a fit and proper person to conduct the ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established