United Workers' Union v The Trustee for Regal Cream Products Trust T/A Bulla Dairy Foods (Derrimut)

[2023] FWC 2575

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

The Trustee for Regal Cream Products Trust T/A Bulla Dairy Foods (Derrimut)

(B2023/1057)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 6 OCTOBER 2023

Proposed protected action ballot of employees of Regal Cream Products 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 The Trustee for Regal Cream Products Trust T/A Bulla Dairy Foods (Derrimut) (Bulla or Employer).

On 6 October 2023, the Commission was advised that Bulla 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 Gardener, 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 Bulla, 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 23 October 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 PR766908.

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 is, in effect, eleven (11) working days from the date of the Order, as specified in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide on an application by the United Workers' Union to hold a protected action ballot among employees of Bulla Dairy Foods, a subsidiary of Regal Cream Products Trust. The union sought this ballot as part of its efforts to reach a new enterprise agreement with the employer. The employer did not object to the application, so the Deputy President, Hampton, decided to proceed without a hearing. Based on the evidence provided, the Commission found that the union had met all necessary requirements for such a ballot, including notifying the employer of the proposed agreement and the union's efforts to reach an agreement. The ballot is to be conducted by Democratic Outcomes Pty Ltd T/A CiVS, which has been approved as a ballot agent. The Commission set the closing date for the ballot as 23 October 2023.

The primary legal issue before the Commission was whether the union had satisfied all the conditions required under section 443 of the Fair Work Act 2009 to hold a protected action ballot. These conditions include proper notification of the proposed agreement to the employer and evidence of genuine efforts to reach an agreement. The union's declaration by Ms Amber Gardener, the union organiser, provided the necessary details regarding the bargaining process and the union's efforts to negotiate with the employer. The employer's lack of objection further supported the union's claim. The Commission also had to determine a suitable closing date for the ballot, which was set at 23 October 2023, ensuring it met the legal requirement of eleven working days from the order date.

The Commission found that all statutory requirements were fulfilled, and the employer's non-objection facilitated the decision. Consequently, the Commission granted the union's application and authorised the ballot to proceed. The Commission also issued an order for a compulsory conciliation conference to be held separately, requiring all bargaining representatives to attend and engage in meaningful negotiations. This decision ensures that the process remains fair and that both parties have an opportunity to discuss the proposed agreement further. The matter will now be assigned to another member of the Commission to oversee the conciliation conference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established