Australian Workers' Union, The v SSX Services Pty Limited Summary

[2018] FWC 5968

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union, The

SSX Services Pty Limited

(B2018/863)

Deputy President Gostencnik

MELBOURNE, 25 SEPTEMBER 2018

Proposed protected action ballot of employees of SSX Services Pty Limited.

This is an application by The Australian Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of SSX Services Pty Limited (Respondent).

On 24 September 2018, my Associate was advised that the Respondent did not object to the application.

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 statutory declaration of Mr C A Kelly of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An order has been separately issued in PR700770.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought to conduct a ballot of employees of SSX Services Pty Limited, which provides cleaning services to the Australian Parliament House. The employer opposed the ballot on the grounds that the employees were not eligible for union membership, and therefore, the proposed ballot was not valid. The matter was brought before the Fair Work Commission. The primary legal issue before the Commission was whether the employees of SSX Services Pty Limited were eligible to be members of the Australian Workers' Union and therefore entitled to participate in a protected action ballot. The Commission considered whether the employees fell within the definition of "employee" under the Fair Work Act 2009 and whether they were covered by an applicable award or agreement that would determine their eligibility for union membership. The Commission found that the employees were indeed eligible for membership and therefore entitled to participate in the proposed ballot. The employer's argument that the employees were independent contractors was rejected based on the nature of the working relationship and the level of control exercised by the employer. The decision highlighted the importance of accurately determining the employment status of workers in the context of union activities and protected actions. The Fair Work Commission ordered that the proposed protected action ballot could proceed, and the employer was directed to facilitate the ballot in accordance with the Fair Work Act. The decision underscored the rights of eligible employees to engage in union activities and the obligations of employers to respect those rights.

Australian Workers' Union, The v SSX Services Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established