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

Printed by authority of the Commonwealth Government Printer

1 PR729189

CaseChat Overview and Summary

In the case of United Workers' Union v PFD Food Services Pty Ltd, the dispute involved the proposed industrial action of employees of PFD Food Services Pty Ltd. The Union sought an order to compel the employer to hold a protected action ballot of its employees. The case was heard in the Fair Work Commission. The Union contended that the employees were entitled to a ballot under the Fair Work Act 2009 (Cth). The employer, PFD Food Services Pty Ltd, argued that the proposed industrial action did not meet the statutory requirements for a ballot and that the Union had not provided sufficient information to the employer to enable the employer to facilitate the ballot.

The central legal issues were whether the Union had satisfied the conditions for holding a protected action ballot and whether the employer had provided the required information to facilitate the ballot. The Union argued that it had provided the necessary information and that the proposed industrial action was protected action under the Act. The employer contended that the Union had not provided sufficient information and that the proposed industrial action did not qualify as protected action.

The Commission found that the Union had provided sufficient information to enable the employer to facilitate the ballot and that the proposed industrial action qualified as protected action. The Union had demonstrated that the proposed industrial action was related to a workplace matter and that the employees were seeking to improve their working conditions. The Commission held that the employer was required to hold a ballot of its employees in accordance with the Act. The employer's arguments that the Union had not provided sufficient information and that the proposed industrial action did not qualify as protected action were rejected.

The orders made by the Commission included an order for the employer to facilitate a ballot of its employees in relation to the proposed industrial action. The employer was required to provide the necessary information to the Union and to take all reasonable steps to enable the Union to conduct the ballot. The employer was also required to provide the Union with access to its premises and employees to facilitate the ballot. The employer was directed to comply with the orders within 28 days of the decision.

United Workers' Union v PFD Food Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established