Australian Municipal, Administrative, Clerical and Services Union v Zinfra Contracting Pty Ltd

[2025] FWC 504

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Municipal, Administrative, Clerical and Services Union
v

Zinfra Contracting Pty Ltd

(B2025/267)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 20 FEBRUARY 2025

Proposed protected action ballot of employees of Zinfra Contracting Pty Ltd

This is an application by the Australian Municipal, Administrative, Clerical and Services Union (ASU 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 Zinfra Contracting Pty Ltd (Zinfra or Employer).

On 19 February 2025, the Commission was advised that the Employer did not object to the Application in an amended form following discussion between the parties. The parties communicated a consent position. Accordingly, I have granted leave to amend the application and determined the matter on the papers without conducting a hearing.

On the basis of the material before me, including the declaration of Jonathan Smallbone, Organiser, setting out the steps taken by the ASU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Zinfra, 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 Australian Electoral Commission (AEC).

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 4 April 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR784552.

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 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] This is, in effect, 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Municipal, Administrative, Clerical and Services Union (ASU) sought an order under section 437 of the Fair Work Act 2009 for a protected action ballot to be conducted among employees of Zinfra Contracting Pty Ltd. The application was made due to the union's efforts to reach an agreement with the employer, which had been unsuccessful. The employer did not object to the application, and the parties reached a consent position regarding the terms of the ballot. Consequently, the Deputy President granted leave to amend the application and decided the matter without a hearing.

The primary legal issue before the court was whether the union had satisfied the requirements under section 443 of the Act for conducting a protected action ballot. This involved confirming that the union had genuinely attempted to negotiate with the employer and that a notification period had been established. The Deputy President reviewed the declaration provided by Jonathan Smallbone, an organiser for the union, which outlined the union's bargaining efforts and compliance with the Act's requirements. The court was satisfied that the union had met all necessary conditions for the ballot.

Upon finding that the union had met the statutory requirements, the Deputy President determined that the ballot should proceed and be conducted by the Australian Electoral Commission. The voting period was set to close on 4 April 2025, which aligned with the statutory 30 working days needed for the Electoral Commission to conduct the ballot. Additionally, the Deputy President assigned the matter to another member of the Commission to oversee a compulsory conciliation conference, which would require the attendance of all bargaining representatives in the proposed enterprise agreement.

The final orders included granting the application for a ballot order, setting the ballot closing date, and assigning the matter for compulsory conciliation. These orders ensured that the employees' interests were represented and that the negotiation process continued under the supervision of the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established