United Workers' Union v Target Australia Pty Ltd Summary

[2023] FWC 1839

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Target Australia Pty Ltd

(B2023/749)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 26 JULY 2023

Proposed protected action ballot of employees of Target Australia Pty Ltd

This is an application by the United Workers’ Union (UWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Target Australia Pty Ltd (Target or Employer).

On 26 July 2023, the Commission was advised that Target 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 Mr Jasdev Kang, UWU 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 Target, 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 recently 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) and s.448A(2) of the Act, a ballot period of ten (10) working days from the date of the Order (26 July 2023) has been determined by the Commission. I observe that this is, in effect, the same ballot period proposed[2] in the draft Order.

An Order has been separately issued in PR764600.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference and this Member will issue the Order requiring attendance 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] 7 working days from the opening of the ballot period.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission received an application from the United Workers' Union for a protected action ballot order concerning employees of Target Australia Pty Ltd. The application was made under section 437 of the Fair Work Act 2009. The Union sought to conduct a ballot for potential industrial action by employees, and the matter was determined on the papers without a hearing as Target did not object to the application. The Union's application was supported by a declaration from its Organiser, Mr. Jasdev Kang, detailing the bargaining process and the Union's efforts to reach an agreement with Target.

The Commission had to decide whether the Union had satisfied the requirements for a protected action ballot under section 443(1) of the Act, which includes the existence of a notification time in relation to the proposed agreement. The Commission was satisfied that the Union had met all the necessary criteria based on the material presented, including the declaration and evidence of ongoing genuine bargaining efforts. Additionally, the Commission approved the use of Democratic Outcomes Pty Ltd T/A CiVS as the ballot agent, having recently confirmed its eligibility under section 468A of the Act. The Commission set a ballot period of ten working days from the date of the Order, which aligns with the proposed period in the draft Order.

The Deputy President issued the Order for the protected action ballot, specifying the ten-working-day ballot period commencing from 26 July 2023. Another member of the Commission will handle the compulsory conciliation conference under section 448A, with likely directions for the parties to attend prepared for meaningful negotiations. This decision ensures the process for the ballot proceeds while facilitating further discussions between the Union and Target to potentially resolve the underlying dispute.

United Workers' Union v Target Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established