United Workers' Union v Tatura Milk Industries Pty Ltd

[2022] FWC 2356

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Tatura Milk Industries Pty Ltd

(B2022/1328)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 5 SEPTEMBER 2022

Proposed protected action ballot of employees of Tatura Milk Industries Pty Ltd

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 Tatura Milk Industries Pty Ltd (Respondent).

On 5 September 2022, my Associate was advised that the Respondent 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 David Bish 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.
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.

Therefore I appoint CiVS as the protected action ballot agent.

An order has been separately issued in PR745496.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, under the Fair Work Act 2009, was approached by the United Workers’ Union to grant a protected action ballot order for certain employees of Tatura Milk Industries Pty Ltd. The union sought to conduct a ballot to authorise protected action, and the company did not object to the application. The matter was determined by Deputy President Clancy on 5 September 2022, without a hearing, based on the documentation provided. The union’s declaration and evidence of genuine bargaining efforts satisfied the legal requirements for a notification time and the conditions set out in section 443(1) of the Act.

The central legal issue in this case was whether the union had met the statutory prerequisites for a protected action ballot, including the notification time and the conditions for such a ballot. Additionally, the union requested that a person other than the Australian Electoral Commission be the ballot agent, a request that was not opposed by the company. The suitability of Democratic Outcomes Pty Ltd trading as CiVS as the ballot agent was also scrutinized, with the court considering the experience of the proposed agent and the capability to ensure secrecy and security of the votes.

The Deputy President found that the union had indeed met the legal requirements for a protected action ballot, and there was no objection from the company. The proposed ballot agent, CiVS, was deemed fit and proper for the role, with the Managing Director providing a statutory declaration confirming their capability and experience. The court also accepted that CiVS could ensure the confidentiality and security of the voting process. Consequently, CiVS was appointed as the ballot agent for the protected action ballot, and the union’s application was granted.

The final orders included the granting of a protected action ballot order and the appointment of CiVS as the ballot agent, ensuring compliance with the Privacy Act 1998. This decision allows the union to proceed with the ballot under the auspices of the appointed agent, subject to the terms and conditions set by the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established