Australian Workers' Union, The v APT Management Services Pty Ltd, APA VTS Australia (Operations) Pty Ltd

[2023] FWC 2915

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union, The
v

APT Management Services Pty Ltd, APA VTS Australia (Operations) Pty Ltd

(B2023/1212)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

APT Management Services Pty Ltd, APA VTS Australia (Operations) Pty Ltd

(B2023/1213)

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v

APT Management Services Pty Ltd, APA VTS Australia (Operations) Pty Ltd

(B2023/1215)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 6 NOVEMBER 2023

Proposed protected action ballot of employees of APT Management Services Pty Ltd and APA VTS Australia (Operations) Pty Ltd

These are three related applications by the Australian Workers’ Union (AWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) made under s.437 of the Fair Work Act 2009 (Act) for protected action ballot orders in relation to certain employees of APT Management Services Pty Ltd and APA VTS Australia (Operations) Pty Ltd (Employers).

On 6 November 2023, the Respondent advised the Commission that it did not have any objections to any of the applications made by the three unions.

In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

On the basis of the material before me, including the declarations of Robert Nguyen, AWU Organiser, Chelsea Hill, CEPU Legal and Industrial Admin Facilitator, and John Stewart, AMWU Organiser, setting out the steps taken by the unions in bargaining with the Employers and that they have been, and are, genuinely trying to reach agreement with them, 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 with respect to each application.

Based on the terms of the order sought by the AMWU only, I am satisfied that there are exceptional circumstances justifying the period of written notice being longer than 3 working days for industrial action referred to in Questions 10 – 16 of the ballot questions, as they relate to the performance of priority 5 and 6 jobs. Pursuant to s.443(5) of the Act, the period of written notice for the purposes of s414(2)(b) of the Act is seven working days for the industrial action specified in Questions 10 – 16 of the order sought by the AMWU.

The ballots for the applications made by the AWU and the CEPU are to be conducted by Vero Engagement & Voting Solutions Pty Ltd trading as Vero Voting (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act[1] and consequently is authorised to conduct the ballot.

The ballot for the application made by the AMWU is to be conducted by Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act[2] and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close in relation to each application is 20 November 2023.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

Orders have been separately issued in PR768028 (AWU), PR768025 (CEPU), and PR768029 (AMWU).

These matters will be assigned to another Member of the Commission to conduct a s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved 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] Vero Engagement & Voting Solutions Pty Ltd T/A Vero Voting[2023] FWC 1531.

[2] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.

[3] This is in effect 10 working days from the date of the orders, as sought in the applications.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was asked to decide on three applications by unions for orders to conduct protected action ballots. The unions involved were the Australian Workers' Union (AWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), and the Australian Manufacturing Workers' Union (AMWU). These unions sought to ballot their members employed by APT Management Services Pty Ltd and APA VTS Australia (Operations) Pty Ltd regarding potential protected actions. The employers did not object to the applications, leading the Deputy President to decide on the matter without a hearing. The Deputy President examined the declarations from the unions and found that all necessary conditions for a ballot were met, including the notification period and the unions' genuine efforts in bargaining. The Deputy President also found that there were exceptional circumstances justifying a longer notice period for certain industrial actions proposed by the AMWU. The ballots were to be conducted by approved agents, with voting to close by 20 November 2023.

The legal issues the Deputy President had to decide included whether the unions had met the requirements of the Fair Work Act 2009 for conducting a protected action ballot. This involved verifying that the unions had genuinely tried to reach an agreement with the employers, that there was a notification time in relation to the proposed agreement, and that the unions had met the notification period requirements. Another issue was whether there were exceptional circumstances that warranted a longer notice period for certain types of industrial action as proposed by the AMWU. The Deputy President also needed to determine the closing date for the ballot voting.

The Deputy President found that the unions had met all the statutory requirements for conducting a protected action ballot. The unions had provided declarations confirming their genuine efforts in bargaining and the notification period. The Deputy President also found that there were exceptional circumstances that justified a longer notice period for the industrial actions related to priority 5 and 6 jobs as proposed by the AMWU. The Deputy President then set the closing date for the ballot voting as 20 November 2023, which was 10 working days from the date of the orders. The Deputy President also decided to assign these matters to another member of the Commission for a compulsory conciliation conference to facilitate further negotiations between the parties.

In conclusion, the Deputy President issued orders for the conduct of the protected action ballots by the AWU, CEPU, and AMWU. The ballots were to be conducted by Vero Voting and CiVS, respectively, with voting to close on 20 November 2023. The Deputy President also set up a compulsory conciliation conference for the parties to attend, aiming to facilitate meaningful negotiations. The orders were issued under PR768028 (AWU), PR768025 (CEPU), and PR768029 (AMWU).

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established