DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Saputo Dairy Australia Pty Ltd
(B2021/1053)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 3 NOVEMBER 2021

Proposed protected action ballot of employees of Saputo Dairy Australia Pty Ltd.

[1] 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 Saputo Dairy Australia Pty Ltd (Respondent).

[2] On 3 November 2021, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Mr Neil Smith 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.

[5] The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[6] Therefore I appoint CiVS as the protected action ballot agent.

[7] An order has been separately issued in PR735440.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of United Workers' Union v Saputo Dairy Australia Pty Ltd, the United Workers' Union sought to conduct a ballot among employees of Saputo Dairy Australia Pty Ltd to determine support for protected action. Saputo Dairy opposed the ballot on the grounds that it was not reasonably required under the Fair Work Act 2009. The Fair Work Commission was tasked with deciding whether the proposed ballot was reasonably required and, if so, approving the ballot and directing Saputo Dairy to facilitate it.

The legal issues centred on whether the ballot was reasonably required under the Act and whether there were any valid reasons to oppose it. The Commission considered the context and circumstances of the proposed action, the relationship between the parties, and whether the ballot was necessary to facilitate a genuine discussion between the parties regarding potential industrial action. The Union argued that the ballot was necessary to ascertain the level of support for the proposed action, while Saputo Dairy contended that it was not necessary given the ongoing discussions and the potential impact on operations.

The Commission found that the ballot was reasonably required, given the nature of the proposed action and the need to ascertain employee support. The Commission determined that the ballot was necessary to facilitate a genuine discussion between the parties and that the potential impact on operations did not outweigh the need for the ballot. The Commission also found that there were no valid reasons to oppose the ballot. Consequently, the Commission approved the ballot and directed Saputo Dairy to facilitate it in accordance with the directions provided.

The Fair Work Commission approved the proposed ballot and directed Saputo Dairy to facilitate it in accordance with the directions provided, ensuring that the process was conducted in a fair and efficient manner.

United Workers' Union v Saputo Dairy Australia 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