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

[2023] FWC 1686

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v

Veolia Water Operations Pty Ltd

(B2023/698)

DEPUTY PRESIDENT SLEVIN

SYDNEY, 14 JULY 2023

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

This is an application by the Australian Municipal, Administrative, Clerical and Services Union New South Wales and ACT (Services) Branch (ASU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Respondent, Veolia Water Australia Pty Ltd (Veolia Water).

The application was made on 12 July 2023. On 13 July 2023 the Respondent raised an objection to one of the ballot questions proposed in the draft order. The Union filed an amended application on 13 July 2023 amending the draft order to address the objection. On 14 July 2023, the Commission was advised that the Respondent did not object to the Application as amended.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing. I propose to make the order in the terms sought by the ASU save that the ballot is to close 10 working days from the date of the order rather than the proposed time of no later than 10 working days. This provides greater certainty around the period in which the conference required by s.448A(1) might occur.

On the basis of the material before me, including the declaration of Mr Peter Macphee, ASU Organiser, setting out the steps taken by the ASU in bargaining I am satisfied that the ASU is genuinely trying to reach agreement with Veolia Water. There is a notification time in relation to the proposed agreement and all other requirements in s.443 of the Act have been met.

The ballot is to be conducted by Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has recently been approved as an eligible protected action ballot agent under s 468A of the Act¹ and is authorised to conduct the ballot. For the purposes of s.443(3)(c) and s.448A(2) of the Act, a ballot period of 10 working days from the date of the Order will apply.

An order has been separately issued in PR764156.

Upon issuing a protected action ballot order the Commission is required by s.448A of the Act to also make an order directing the bargaining representatives to attend a conference for the purpose of mediation or conciliation in relation to the proposed agreement. An order and directions will be issued requiring that the parties attend a conference.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union New South Wales and ACT (Services) Branch (ASU) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Veolia Water Operations Pty Ltd. The application was made to facilitate a ballot in relation to a proposed agreement between the ASU and Veolia Water. The application was filed on 12 July 2023, and Veolia Water raised an objection to one of the ballot questions on 13 July 2023. The ASU subsequently filed an amended application on the same day, addressing the objection, and Veolia Water did not object to the amended application. The Deputy President, Slevin, decided to determine the matter on the papers without a hearing and proposed to make the order in the terms sought by the ASU, with a ballot closing 10 working days from the date of the order to provide certainty regarding the period in which the conference required by section 448A(1) might occur.

The legal issues before the court involved the requirements for a protected action ballot order under section 437 of the Fair Work Act 2009. The court had to determine whether the ASU was genuinely trying to reach an agreement with Veolia Water and whether all other requirements in section 443 of the Act had been met. Additionally, the court needed to decide whether the proposed ballot agent, Democratic Outcomes Pty Ltd T/A CiVS (CiVS), was eligible to conduct the ballot under section 468A of the Act. The court also had to consider the requirement to issue a mediation or conciliation conference order under section 448A of the Act.

The Deputy President, Slevin, was satisfied that the ASU was genuinely trying to reach an agreement with Veolia Water based on the material before the court, including the declaration of Mr Peter Macphee, ASU Organiser, which outlined the bargaining steps taken by the ASU. The court found that there was a notification time in relation to the proposed agreement and that all other requirements in section 443 of the Act had been met. Furthermore, the court determined that CiVS was eligible to conduct the ballot as it had been recently approved as an eligible protected action ballot agent under section 468A of the Act. The court also noted that the ballot period of 10 working days from the date of the order would apply for the purposes of sections 443(3)(c) and 448A(2) of the Act. Finally, the court issued an order and directions for the parties to attend a mediation or conciliation conference.

An order was made for a protected action ballot to be conducted by CiVS, closing 10 working days from the date of the order. The order also required the bargaining representatives to attend a conference for the purpose of mediation or conciliation in relation to the proposed agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established