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

[2023] FWC 3325

[2023] FWC 3325

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Nestle Australia Limited T/A Uncle Tobys

(B2023/1363)

DEPUTY PRESIDENT HAMPTON MELBOURNE, 13 DECEMBER 2023

Proposed protected action ballot of employees of Nestle Australia Limited

1. 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 Toby’s (Nestle or Employer). 

1. On 12 December 2023, the Commission was advised, in effect, that Nestle did not object to the Application.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the declaration of Mr 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 Nestle, 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.

1. 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 30 January 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. An order has been separately issued in PR769351.

1. 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, 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot. The Applicant sought the ballot close date as 11 January 2024, which has been extended to meet the requirements of the AEC as advised in earlier correspondence from the Commission.

Printed by authority of the Commonwealth Government Printer

<PR769350>