United Workers' Union v Saputo Dairy Australia Pty Ltd

[2023] FWC 2263

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Saputo Dairy Australia Pty Ltd

(B2023/938)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 6 SEPTEMBER 2023

Proposed protected action ballot of employees of Saputo Dairy Australia Pty 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 Saputo Dairy Australia Pty Ltd (Saputo or Employer).

On 6 September 2023, the Commission was advised that in light of certain bargaining developments Saputo did not, in effect, 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 Ms Jill Batt, 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 Saputo, 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 Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[1] and consequently is authorised to conduct the ballot.

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 28 September 2023.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR765910.

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] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[2] This date was specified in the proposed order and is, in effect, sixteen (16) working days from the date of the Order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the United Workers’ Union (UWU) has applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of Saputo Dairy Australia Pty Ltd. The application was made under section 437 of the Fair Work Act 2009. The UWU seeks to conduct a protected action ballot, which would allow its members to vote on whether to take industrial action. The dispute between the union and the employer concerns the terms and conditions of employment for the employees in question.

The primary legal issue before the Commission was whether the UWU had met the requirements set out in section 443 of the Act to be granted a protected action ballot order. This includes demonstrating that there is a notification time in relation to a proposed agreement, that the union has been genuinely trying to reach agreement with the employer, and that certain other conditions have been satisfied. The UWU provided a declaration from Ms Jill Batt, an Organiser, which outlined the steps taken in bargaining with Saputo and confirmed the union's genuine efforts to reach an agreement.

In deciding the matter, the Deputy President of the Commission, Hampton, considered the material submitted, including the declaration from Ms Batt. The Commission was satisfied that the UWU had met all of the requirements in section 443(1) of the Act. As the employer did not object to the application, the Deputy President determined the matter on the papers without holding a hearing. The Commission also set the closing date for voting as 28 September 2023 and authorised CiVS to conduct the ballot. Further orders were made to ensure that a conciliation conference would be held to facilitate negotiations between the parties.

In summary, the Fair Work Commission has granted the UWU's application for a protected action ballot order, allowing its members to vote on potential industrial action. The Commission was satisfied that the union had met the legal requirements to be granted such an order. The ballot will be conducted by CiVS and will close on 28 September 2023. A conciliation conference will also be held to facilitate negotiations between the union and the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established