United Workers' Union v Saputo Dairy Australia Pty Ltd

[2023] FWC 2259

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Saputo Dairy Australia Pty Ltd

(B2023/936)

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 Mr Neil Smith, National Dairy Coordinator, UWU, 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 PR765900.

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

The United Workers' Union (UWU) filed an application under section 437 of the Fair Work Act 2009, seeking a protected action ballot order concerning certain employees of Saputo Dairy Australia Pty Ltd (Saputo). The application was heard by the Fair Work Commission, with Deputy President Hampton presiding over the matter. Given recent developments in bargaining, Saputo withdrew its objections, allowing the Commission to proceed with the decision based on the submitted documents.

The central legal issue was whether the UWU had met all necessary requirements to hold a protected action ballot. This included verifying that the UWU had genuinely attempted to reach an agreement with Saputo and ensuring that the notification period for the proposed agreement was appropriate. The Commission needed to confirm that all conditions under section 443(1) of the Act were fulfilled.

Upon reviewing the evidence, including a declaration from Mr. Neil Smith, the National Dairy Coordinator for UWU, the Commission found that the UWU had indeed been genuinely attempting to negotiate with Saputo. The notification period for the proposed agreement was also deemed appropriate. Consequently, the Commission determined that the ballot should proceed. The ballot would be conducted by Democratic Outcomes Pty Ltd T/A CiVS, which is authorised under section 468A of the Act. The Commission set the closing date for voting as 28 September 2023, which would also establish the ballot period for s.448A(2) of the Act.

An order was issued separately in PR765900, and the matter was assigned to another Member of the Commission for a compulsory conciliation conference under section 448A. This Member would issue an order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. Directions would likely be issued to ensure that the parties were prepared for meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established