United Workers' Union v PFD Food Services Pty Ltd

[2021] FWC 2473

[2021] FWC 2473

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

United Workers' Union
v
PFD Food Services Pty Ltd
(B2021/310)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 7 MAY 2021

Proposed protected action ballot of employees of PFD Food Services Pty Ltd

[1] This is an application lodged on 30 April 2021 by the United Workers' Union (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of PFD Food Services Pty Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent advised on 3 May 2021 it objected to the application on the basis that one of the questions was unclear.

[3] After the objection was raised I issued directions concerning conduct of the matter. These directions required the parties to enter into private discussions with a view to resolving the objection. If the matter remained unresolved my directions provided for the filing of materials in advance of a hearing.

[4] In the afternoon on 3 May 2021 the Respondent advised that the parties had been unable to resolve the dispute. However, the Respondent further advised that it no longer pressed its objection to the application and requested my directions be vacated.

[5] In the circumstances, I have decided to vacate my directions and determine the matter on the papers without holding a hearing.

[6] On the basis of the material before me, including the statutory declaration of Ms Anne Purdy of the Applicant lodged 30 April 2021, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[7] The Applicant sought a ballot period of “no later than 30 days from the date of this order” (emphasis added). Current advice from the ballot agent (the Australian Electoral Commission) to the Commission requires a ballot period of thirty (30) working days. Accordingly the Order in this matter will reflect this protocol.

[8] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[9] An Order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

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