United Workers' Union v Nestle Australia Limited T/A Uncle Tobys

[2024] FWC 623

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Nestle Australia Limited T/A Uncle Tobys

(B2024/201)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 8 MARCH 2024

Proposed protected action ballot of employees of Nestle Australia Limited T/A Uncle Tobys

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 Nestle Australia Limited T/A Uncle Tobys (Uncle Tobys or Employer).

On 8 March 2024, the Commission was advised that Uncle Tobys, 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 Nick Gordon on behalf of the 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 Uncle Tobys, 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 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 20 March 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I have reordered Clauses 6 to 8 of the Applicant’s proposed order to align with the Commission’s standard drafting style.

An order has been separately issued in PR772190.

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] This is, in effect, 7 working days from the commencement of the Order as sought in the application. Both the ballot agent and the Commission can accommodate that timeframe in the particular circumstances of this matter and a further period was not sought by any party.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the United Workers' Union for a protected action ballot order in relation to employees of Nestle Australia Limited trading as Uncle Tobys. The application was made under section 437 of the Fair Work Act 2009, seeking permission for the union to conduct a ballot of its members to authorise protected industrial action. The employer, Uncle Tobys, did not object to the application, leading the Deputy President to determine the matter based on the documentation submitted without a hearing. The union's declaration, affirming its efforts to reach an agreement with the employer, satisfied the Commission that all requirements under section 443(1) of the Act had been met, including the notification time for the proposed agreement.

The legal issues before the Commission involved verifying whether the union had genuinely attempted to negotiate an agreement with the employer and if the union's application complied with the legislative provisions concerning protected action ballots. The Commission's decision hinged on the union's demonstration of good faith bargaining and adherence to the Act's requirements. Additionally, the court had to determine an appropriate closing date for the ballot to ensure it aligned with the statutory timeframes and the practicalities of conducting the ballot.

Upon reviewing the application and the union's declaration, the Deputy President concluded that the union had met the necessary criteria for proceeding with the ballot. The determination of the ballot closing date was set to 20 March 2024, which was effectively seven working days from the issuance of the order. The Commission also confirmed that Democratic Outcomes Pty Ltd T/A CiVS was an authorised agent to conduct the ballot. The Deputy President adjusted the wording of the proposed order to conform with the Commission's standard drafting style and noted that separate proceedings for a compulsory conciliation conference would be assigned to another member of the Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established