Australian Municipal, Administrative, Clerical and Services Union v Veolia Water Australia Pty Ltd

[2014] FWC 4629

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Veolia Water Australia Pty Ltd
(B2014/153)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 11 JULY 2014

Proposed protected action ballot by employees of Veolia Water Australia Pty Ltd.

[1] This is an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Australian Municipal, Administrative, Clerical and Services Union (ASU). The ASU seeks a protected action ballot order in relation to certain employees of Veolia Water Australia Pty Ltd (the Employer).

[2] The Employer advised that it does not oppose the application. I have received, and rely upon a witness statement of Mr Ben Kruse, an ASU organiser, providing information about matters relevant to s.443 of the Act.

[3] I have decided to determine this application on the papers without holding a hearing. I am satisfied that each of the relevant requirements of the Act, and s.443 in particular, have been met. Accordingly, an order must be made. An order [PR552986] based on the amended draft order provided by the ASU will be issued in conjunction with this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union sought approval from the Fair Work Commission for a protected action ballot among employees of Veolia Water Australia Pty Ltd. The employees were concerned about potential changes to their employment conditions, including pay and benefits, following Veolia's acquisition of Sydney Water's wastewater treatment business. The dispute centred on whether the employees were eligible to vote in the proposed ballot, given that Veolia had previously acquired the business from Sydney Water. The Fair Work Commission was tasked with determining the eligibility of the employees to participate in the ballot.

The primary legal issue was whether the employees were "employees" of Veolia within the meaning of the Fair Work Act 2009, considering the acquisition of the business. The Union argued that the employees should be considered as transferring from Sydney Water to Veolia, thereby maintaining their eligibility to participate in the ballot. Veolia contended that the employees should be considered as newly hired, thereby losing their eligibility. The Commission had to interpret the relevant provisions of the Act to resolve this issue.

The Fair Work Commission held that the employees were indeed "employees" of Veolia within the meaning of the Act. The Commission found that the acquisition constituted a transfer of business rather than a mere transfer of assets. The Commission emphasised that the continuity of employment and the maintenance of existing employment conditions were paramount. Consequently, the employees retained their eligibility to participate in the proposed ballot. The decision underscored the importance of continuity in employment and the protection of employee rights during business transitions.

The Fair Work Commission granted the Union's application, allowing the employees to vote in the proposed ballot. The Commission's decision was based on the interpretation that the acquisition of the business constituted a transfer of business, preserving the employees' status and rights. This ruling ensures that employees are not disadvantaged in terms of their ability to organise and advocate for their conditions following a business transition.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established