United Workers' Union v Saputo Dairy Australia Pty Ltd t/a King Island Dairy

[2023] FWC 2572

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Saputo Dairy Australia Pty Ltd t/a King Island Dairy

(B2023/1054)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 6 OCTOBER 2023

Proposed protected action ballot of employees of Saputo Dairy Australia Pty Ltd t/a King Island Dairy

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 t/a King Island Dairy (King Island Dairy or Employer).

On 5 October 2023, the Commission was advised, in effect, that King Island Dairy 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 Ms Jill Batt on behalf of the 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 King Island Dairy, 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 Australian Electoral Commission. 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 17 November 2023.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR766899.

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] This is, in effect, 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot. The Applicant sought the ballot close date as 16 November 2023, which has been extended by one day to meet the requirements of the AEC.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked by the United Workers' Union (UWU) to allow a ballot of the employees of Saputo Dairy Australia Pty Ltd, operating as King Island Dairy, regarding a proposed agreement. The employer did not oppose the application. The application was assessed on the basis of the provided documentation and the declaration from Ms. Jill Batt on behalf of UWU, which confirmed that the union had genuinely attempted to reach an agreement with the employer. The Deputy President Hampton determined that all necessary requirements under section 443(1) of the Fair Work Act 2009 were satisfied and approved the ballot to be conducted by the Australian Electoral Commission. The ballot closing date was set at 17 November 2023, which was extended by one day to accommodate the needs of the Australian Electoral Commission. This date also established the ballot period for the purpose of section 448A(2) of the Act.

The legal issues in this case involved verifying whether the union had genuinely tried to reach an agreement with the employer, and whether the notification time and requirements under section 443(1) of the Fair Work Act 2009 were met. The Commission had to ensure that the union had taken sufficient steps in bargaining with the employer and that all necessary procedures were followed for the ballot to proceed. Additionally, the Commission needed to determine an appropriate ballot closing date that would allow sufficient time for the Australian Electoral Commission to conduct the ballot.

In making the decision, the Deputy President Hampton relied on the documentation provided by the United Workers' Union, which detailed the steps taken in bargaining with the employer, and confirmed that the union had been genuinely trying to reach an agreement. The Deputy President was satisfied that the notification time in relation to the proposed agreement had been met and that all requirements under section 443(1) of the Fair Work Act 2009 had been fulfilled. The Deputy President Hampton also took into account the requirements of the Australian Electoral Commission in setting the ballot closing date.

The Fair Work Commission granted the application for a ballot and set the closing date as 17 November 2023. This decision will allow the employees of Saputo Dairy Australia Pty Ltd, operating as King Island Dairy, to vote on the proposed agreement. A separate order was issued in PR766899, and the matter will be assigned to another Member of the Commission to conduct the compulsory conciliation conference under section 448A of the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established