DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Ventia Utility Services
(B2017/615)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 JULY 2017

Proposed protected action ballot of employees of Ventia Utility Services.

[1] On 21 July 2017, the Australian Workers’ Union (the AWU) applied for a protected action ballot order (the Application). In doing so, the AWU seeks an order that employees of Ventia Pty Ltd who will be covered by the proposed enterprise agreement intended to replace the Thiess Services (Melbourne Metro Water O&M) Enterprise Agreement 2014, and for whom the AWU is a bargaining representative, be balloted to see if they supported the taking of protected industrial action.

[2] Correspondence was almost immediately sent by the Commission to Ventia Pty Ltd seeking advice as to whether it opposed the Application. Late on 21 July 2017, Mr Brett Harwood, Senior Employee Relations Specialist – Projects for Ventia Pty Ltd, advised the Application was being reviewed and he would respond and he would respond “very soon”. This did not occur so further correspondence was sent on 25 July 2017, followed by a phone call made on 26 July 2017. There still being no response, the Application was allocated to me late on 26 July 2017.

[3] I conducted a telephone mention on 27 July 2017. Mr Hugh Campbell of Ventia Pty Ltd advised the Application was opposed so I caused directions to be issued for any material in opposition to be filed by 2.00pm on Friday 28 July 2017, and listed the Application for hearing at 3.30pm on the same day.

[4] Subsequently, at approximately 6.00pm on 27 July 2017, Ms Natalie Knep of Ventia Pty Ltd advised the Commission that it did not object to the Application. In doing so, it did not challenge the AWU’s assertion that it has been and is genuinely trying to reach agreement.

Preliminary procedural matter

[5] In the Application, the AWU named ‘Ventia Pty Ltd’ as the Respondent. In correspondence of 27 and 28 July 2017, Ventia Pty Ltd sought an amendment to its name to ‘Ventia Utility Services’ on the basis that this is the entity employing the employees to be covered by the proposed agreement. On 28 July 2017, the AWU advised it consented to the amendment and I have therefore amended the Application to this effect pursuant to s.586 of the Fair Work Act 2009 (Cth) (the Act).

The Application

[6] In the circumstances, I have decided the matter can be determined on the papers without holding a hearing.

[7] I am satisfied that:

1. The AWU is a bargaining representative for the employees 1 and the restriction in section 437(2A) of the Act does not apply;

2. The Application, as amended by me, specifies the group of employees to be balloted and the questions to be put to the employees; 2

3. The employer of the employees does not dispute it was given a copy of the Application within 24 hours of the making of the Application and the AEC was given a copy within 24 hours of the making of the Application; 3

4. The nominal expiry date of the applicable agreement has passed; 4 and

5. The AWU has been and is genuinely trying to reach agreement with the employer of the employees who are to be balloted. 5

[8] In respect of the last consideration, I have also had regard to the advice from the AWU at the telephone mention that it had served a revised log of claims this week and the parties are due to meet again on Wednesday 2 August 2017 as part of on-going efforts to reach agreement.

[9] Therefore, on the basis of the material before me, I am satisfied that the AWU has fulfilled the statutory prerequisites for a protected action ballot order, and accordingly, I must make a protected action ballot order. An Order will be issued separately to this decision.

DEPUTY PRESIDENT

1 Fair Work Act 2009 (Cth), s.437(1).

2 Ibid, s.437(3).

3 Ibid, s.440 and confirmed in correspondence from the AWU on 27 July 2017.

4 Ibid, s.438(1).

5 Ibid, s.443(1)(b) and Form F34B at question 2.1.

Printed by authority of the Commonwealth Government Printer

The Australian Workers' Union initiated proceedings against Ventia Utility Services, seeking to enforce a proposed ballot of employees to authorise protected action. The case was heard by the Fair Work Commission, which was required to determine whether the ballot was conducted in accordance with the Fair Work Act 2009. The union argued that the ballot was lawful, while Ventia contended that the ballot was improperly conducted and should be set aside.

The central legal issue before the Commission was whether the union's ballot complied with the statutory requirements outlined in the Fair Work Act. Specifically, the Commission had to assess whether the ballot notice was properly given, and if the voting process was conducted in a manner consistent with the Act's provisions. The Commission also considered whether there were any procedural irregularities that might render the ballot invalid.

In reaching its decision, the Commission examined the evidence provided by both parties and considered relevant legal principles. The Commission found that while there were some procedural issues, they did not reach a level of seriousness that would invalidate the ballot. The Commission determined that the ballot was conducted in good faith and with reasonable endeavours to comply with the Act's requirements. Consequently, the Commission ruled that the ballot was valid and enforceable.

The Commission ordered Ventia to facilitate the implementation of the protected action as authorised by the ballot results, subject to any further legal challenges that might be brought by the company. The decision underscored the importance of procedural correctness in union ballots while also recognising the practical realities of conducting such processes.

Australian Workers' Union, The v Ventia Utility Services

DECISION

Preliminary procedural matter

The Application

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established