| [2024] FWC 1969 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
United Workers' Union
v
Nestle Australia Ltd
(B2024/945)
| DEPUTY PRESIDENT HAMPTON | ADELAIDE, 25 JULY 2024 |
Proposed protected action ballot of employees of Nestle Australia 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 Nestle Australia Ltd (Nestle or Employer).
On 25 July 2024, the Commission was advised that the Employer 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 Tegan Milliken, Senior 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 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.
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 6 September 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 PR777521.
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
< PR777522>
- AGLC
- United Workers' Union v Nestle Australia Ltd [2024] FWC 1969
- Case
- [2024] FWC 1969
- Decision Date
CaseChat Overview and Summary
The legal issues the court addressed revolved around the requirements set out in section 443(1) of the Act, which must be fulfilled for a protected action ballot to be authorised. The court needed to determine whether the union had genuinely attempted to reach an agreement with Nestle and whether a notification period for the proposed agreement existed. The union's declaration and the lack of objection from Nestle facilitated the court's conclusion that all conditions for the ballot had been met. Furthermore, the court set the closing date for the ballot as 6 September 2024, which also marks the ballot period under section 448A(2) of the Act.
The decision was reached on the basis that the union had genuinely attempted to negotiate and that all statutory requirements were satisfied. The Fair Work Commission authorised the ballot and appointed the Australian Electoral Commission to conduct it. Additionally, the court determined that a compulsory conciliation conference would follow, overseen by another member of the Commission, to ensure meaningful negotiations. This decision ensures that the union can proceed with the ballot while also providing a structured pathway for further negotiations between the union and Nestle.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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