United Workers' Union v Saputo Dairy Australia Pty Ltd T/A Saputo

[2023] FWC 2262

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Saputo Dairy Australia Pty Ltd T/A Saputo

(B2023/937)

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 Amber Gardner, 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 PR765908.

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 Fair Work Commission considered an application by the United Workers' Union (UWU) for an order allowing a protected action ballot among employees of Saputo Dairy Australia Pty Ltd. The application was made under section 437 of the Fair Work Act 2009. The proposed action was in response to ongoing negotiations between the UWU and Saputo regarding a potential enterprise agreement. Following developments in these negotiations, Saputo informed the Commission that it did not object to the application, leading the Deputy President to proceed with the decision based on the documentation provided.

The central legal issue was whether the UWU had met the statutory requirements to conduct a protected action ballot, particularly under section 443 of the Fair Work Act. The UWU needed to demonstrate that it had genuinely attempted to reach an agreement with Saputo and that all procedural requirements were satisfied. The UWU's declaration, detailing the negotiation process and efforts to reach an agreement, was central to this assessment.

Upon reviewing the evidence, the Deputy President concluded that the UWU had fulfilled the necessary requirements. The declaration from Ms. Amber Gardner, the UWU Organiser, indicated that the union had genuinely engaged in bargaining with Saputo and was attempting to reach an agreement. Additionally, the Commission determined that the requirements under section 443(1) of the Act had been met, and the proposed agreement had a notification period. Consequently, the Deputy President granted the application and set a voting closure date of 28 September 2023. This date was established as sixteen working days from the date of the order. Furthermore, the Commission planned to assign another member to conduct a compulsory conciliation conference, requiring the attendance of all bargaining representatives to facilitate meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established