United Workers' Union v Vesco Foods Pty Ltd

[2022] FWC 3135

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Vesco Foods Pty Ltd

(B2022/1756)

VICE PRESIDENT CATANZARITI

SYDNEY, 25 NOVEMBER 2022

Proposed protected action ballot of employees of Vesco Foods Pty Ltd

This is an application by the United Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Vesco Foods Pty Ltd (Respondent).

On 24 November 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Margaret Te Awa of the Applicant declared on 23 November 2022, 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.

An Order has been separately issued in PR748314.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission received an application from the United Workers' Union, which sought a protected action ballot order concerning certain employees of Vesco Foods Pty Ltd. The application was made under section 437 of the Fair Work Act 2009. The Union alleged that it had been genuinely trying to reach an agreement with the Respondent, Vesco Foods Pty Ltd, regarding an enterprise agreement. Vesco Foods Pty Ltd did not oppose the application, and the matter proceeded on the basis of written submissions and the statutory declaration provided by the Union.

The legal issues before the Commission were whether the Union had genuinely attempted to negotiate an enterprise agreement with the employer, whether the notification time for the ballot had been met, and whether the statutory requirements for a protected action ballot were satisfied. The Union argued that it had fulfilled its obligations under the Fair Work Act by engaging in good faith negotiations and that the necessary notification period had been observed.

The Fair Work Commission determined that the Union had indeed been genuinely attempting to reach an agreement with the employer and that all statutory requirements, including the notification time, had been met. The Commission was satisfied with the material presented, including the statutory declaration by Margaret Te Awa, who attested to the Union's good faith efforts in bargaining. Consequently, the application for a protected action ballot order was approved.

An Order was issued separately in PR748314, authorising the United Workers' Union to conduct a protected action ballot among the employees of Vesco Foods Pty Ltd. This decision permits the Union to proceed with its proposed industrial action if it follows the legal process and adheres to the terms of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established