United Workers' Union v The Smith's Snackfood Company Pty Limited

[2025] FWC 797

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

The Smith’s Snackfood Company Pty Limited

(B2025/492)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 20 MARCH 2025

Proposed protected action ballot of employees of The Smith’s Snackfood Company Pty Limited

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 The Smith’s Snackfood Company Pty Limited (Smith’s or Employer).

On 20 March 2025, the Commission was advised that the Employer, in effect, 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 Guangzhao Chen (Jacky), 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 Smith’s, 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 Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act 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 2 April 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR785384.

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 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, 9 working days from the making of the Order and was the specific date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, led by Deputy President Hampton, received an application from the United Workers' Union (UWU) for a protected action ballot order regarding employees of The Smith's Snackfood Company Pty Limited (Smith's). The UWU sought the order under section 437 of the Fair Work Act 2009, aiming to facilitate a ballot for protected industrial action among Smith's employees. The application was made on the basis of the union's efforts to reach an agreement with the employer, which did not object to the application. As a result, the matter was determined on the papers without the need for a hearing.

The legal issues before the Commission involved verifying that the union had genuinely attempted to reach an agreement with the employer, confirming the notification time for the proposed agreement, and ensuring that all statutory requirements under sections 443(1) and 443(3)(c) of the Fair Work Act were met. The UWU's declaration by its Organiser, Guangzhao Chen (Jacky), outlined the steps taken in bargaining and affirmed the union's ongoing efforts to reach a resolution. The Commission's decision was based on this declaration and other materials submitted. The Fair Work Commission also approved Fair Vote Services Pty Ltd as the ballot agent, ensuring compliance with section 468A of the Act.

The Deputy President was satisfied that the union had met all requirements for the ballot, including the notification period. Consequently, the date for closing the voting was set at 2 April 2025, which aligns with the union's request for a nine-day ballot period. This decision established the ballot period and mandated the conduct of a compulsory conciliation conference under section 448A of the Act. This conference would involve all bargaining representatives and aim to facilitate meaningful negotiations between the parties. The matter was subsequently assigned to another member of the Commission for further proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established