United Workers' Union v PM Fresh Pty Ltd T/A PM Fresh

[2022] FWC 2069

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

PM Fresh Pty Ltd T/A PM Fresh

(B2022/1175)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 4 AUGUST 2022

Proposed protected action ballot of employees of PM Fresh Pty Ltd

This is an application by the United Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of PM Fresh Pty Ltd T/A PM Fresh (Respondent).

On 4 August 2022, my Associate was advised that the Respondent 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 Mr Christopher Bechaz of the Applicant setting out the steps taken by it in bargaining with the Respondent and 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 s.443(1) of the Act have been met.

An order has been separately issued in PR744504.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the United Workers’ Union, seeking an order for a protected action ballot in relation to employees of PM Fresh Pty Ltd. The union aimed to conduct the ballot under section 437 of the Fair Work Act 2009, which allows for such actions if certain conditions are met. The employer, PM Fresh Pty Ltd, did not object to the application, and the matter was determined on the basis of the provided documents.

The key legal issues before the court involved whether the union had genuinely attempted to negotiate with the employer and whether the notification period required by the Act had been satisfied. The union submitted a declaration from Mr Christopher Bechaz, detailing the bargaining process and the union's efforts to reach an agreement with the employer. The court needed to ascertain whether these efforts met the statutory requirements and if the notification period had been correctly adhered to.

The Deputy President, Clancy, found that the union had indeed made genuine efforts to negotiate with the employer and that the notification period had been appropriately observed. The union's declaration and the lack of objection from the employer were sufficient to satisfy the court that the prerequisites for the ballot were met. Consequently, the application for the protected action ballot was approved.

In light of these findings, the court issued an order permitting the protected action ballot. This decision enables the union to proceed with the ballot as planned, subject to the union's adherence to the terms set out in the order.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established