United Workers' Union v Vitasoy Australia Products Pty Ltd T/A Vitasoy

[2023] FWC 1421

[2023] FWC 1421

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Vitasoy Australia Products Pty Ltd T/A Vitasoy

(B2023/569)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 16 JUNE 2023

Proposed protected action ballot of employees of Vitasoy Australia Products Pty Ltd T/A Vitasoy

1. This is an application by the United Workers’ Union made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in relation to certain employees of Vitasoy Australia Products Pty Ltd T/A Vitasoy (Vitasoy).

1. The application as subsequently amended was not opposed by Vitasoy.

1. The proposed agreement in is not a greenfields agreement, or a multi-enterprise agreement that is a cooperative workplace agreement, and this application is permitted.[1]

1. There has also been a notification time for the proposed agreement, the present enterprise agreement has passed its nominal expiry date, and the application and accompanying documentation is in order. The application and proposed order have also been provided by the UWU to Vitasoy and the proposed ballot agent. This meets various requirements[2] for the making of a PABO.

1. The application was supported by a statutory declaration of Mark Schmidt, UWU Organiser.

1. On 16 June 2023, the Commission was advised that the parties agreed to a 15-day ballot period. Both parties were also provided an opportunity to provide submissions in relation to the existence of exceptional circumstances, if any, that should lead the Commission to exercise its discretion to appoint a non-eligible protected action ballot agent. I note Vitasoy did not make any submissions regarding the existence of exceptional circumstances but did not oppose the appointment of the proposed protected action ballot agent.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing. I have made the proposed PABO, largely in the terms as sought.

1. Section 444 of the Act now relevantly provides as follows:

“444  Ballot agent and independent advisor

… …

Protected action ballot agent

(1A)The FWC must, in accordance with subsections (1B) to (1D) of this section, decide the person or entity that is to be the protected action ballot agent for the protected action ballot.

(1B)The person or entity must be the person or entity specified in the application for the protected action ballot order as the person or entity the applicant wishes to be the protected action ballot agent, unless:

(a)the person or entity specified in the application does not meet the requirements of subsection (1C) (unless subsection (1D) applies); or

(b)the FWC is satisfied that there are exceptional circumstances that justify another person or entity being the protected action ballot agent.

(1C)     The person or entity must be an eligible protected action ballot agent.

(1D)Subsection (1C) does not apply in relation to a person if the FWC is satisfied that:

(a)there are exceptional circumstances that justify the ballot not being conducted by an eligible protected action ballot agent; and

(b)     the person is a fit and proper person to conduct the ballot; and

(c)     any other requirements prescribed by the regulations are met.

Note:Other than the Australian Electoral Commission, an entity that is not a person cannot be the protected action ballot agent for a protected action ballot.”

1. There are presently no eligible protected action ballot agents approved by the Commission beyond the Australian Electoral Commission (AEC), which is authorised directly by the Act. The UWU propose that Democratic Outcomes Pty Ltd T/A CiVS (CiVS) be the ballot agent and, in effect, rely upon the exceptional circumstances contemplated in s.444(1D)(a). CiVS has agreed to be the ballot agent, and this has been confirmed in evidence that is before the Commission.

1. The operation of these provisions and the context for the assessment of exceptional circumstances has been discussed in a number of decisions.[3]

1. I was satisfied that there were exceptional circumstances that justified the approval of the non-eligible ballot agent proposed in this matter. Those circumstances included the nature of the workforce and their roster arrangements and the efficiency and effectiveness of electronic voting in that particular context.

1. The proposed protected action ballot agent must also meet the requirements of s.444(1D)((b) and (c) of the Act. This involves an assessment of whether the proposed protected action ballot agent is a fit and proper person to conduct the ballot and whether they also meet the requirements established by the regulations, and in particular, reg 3.11.

1. I have found in a number of decisions that CiVS is a fit and proper person to act as a ballot agent.[4] The material[5] before the Commission also confirms that this remains the case and that CiVS complies with all of these requirements. This material included details about the nature of the information and other systems to be used for the ballot, compliance with the Privacy Act and related principles, and steps that will be taken to ensure that the ballot is conducted fairly, democratically, and expeditiously by fit and proper individuals.

1. I have approved CiVS to act as the protected action ballot agent in this matter under s.444(1D) of the Act.

1. No independent advisor for the ballot was proposed or appointed.

1. For the purposes of s.443(3)(c) and s.448A(2) of the Act, I have set the ballot period at 15 working days by reference to the date of effect of the PABO (16 June 2023).

1. On the basis of the material before me, I was satisfied that the UWU has been, and is, genuinely trying to reach an agreement with Vitasoy. This meets the requirements of s.443(1)(b) of the Act. I was also satisfied that all of the other statutory requirements for the issuing of the PABO in this matter were met. Under s.443 of the Act, the Commission was then required to issue the PABO.

1. An order has been separately issued in PR763134.

1. This matter will be assigned to another Member of the Commission to conduct the s.448A 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] Act s 437(2).

[2] Act ss. 437, 438, 440.

[3]  AMWU v Otis Elevator Company Pty Limited T/A Otis Elevator Company [2023] FWC 1337; AMWU v UGL Rail Services Pty Limited [2023] FWC 1365 (AMWU v UGL); CEPU v UGL Rail Services Pty Limited [2023] FWC 1381 (CEPU v UGL); AMOU v Solstad Australia Pty Ltd [2023] FWC 1389.

[4]  Including AMWU v Otis Elevator Company Pty Limited T/A Otis Elevator Company [2023] FWC 1337; AMWU v UGL Rail Services Pty Limited [2023] FWC 1365 (AMWU v UGL); CEPU v UGL Rail Services Pty Limited [2023] FWC 1381 (CEPU v UGL); AMOU v Solstad Australia Pty Ltd [2023] FWC 1389.

[5] Including a Declaration of Mr Mike Michael, Managing Director of CiVS.

Printed by authority of the Commonwealth Government Printer

<PR763135>