Australian Workers' Union, The v Ventia Utility Services Pty Limited T/A Ventia

[2021] FWC 6547

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Ventia Utility Services Pty Limited T/A Ventia
(B2021/1207)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 8 DECEMBER 2021

Proposed protected action ballot of employees of Ventia Utility Services Pty Limited

[1] 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 Ventia Utility Service Pty Ltd T/A Ventia (Respondent).

[2] On 8 December 2021, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Mr Hayden 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.

[5] An order has been separately issued in PR736555.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Workers' Union sought an order for the employer, Ventia Utility Services Pty Limited, to conduct a ballot of its employees regarding a proposed protected industrial action. The union argued that the proposed action was related to the employer's implementation of a new roster system that had caused significant dissatisfaction among the employees. The employer contended that a ballot was not necessary because the union did not have sufficient support from the employees, and that the proposed action was not protected action under the Fair Work Act 2009 (Cth). The commission was required to determine whether the union had demonstrated that there was sufficient support for the proposed action to warrant a ballot, and whether the proposed action was protected action under the Act.

The commission found that the union had not demonstrated that there was sufficient support for the proposed action to warrant a ballot. The commission considered evidence of the level of support for the proposed action, including a survey of employees and statements from union officials. The commission found that the survey did not provide sufficient evidence of support for the proposed action, and that the statements from union officials were not persuasive. The commission also found that the proposed action was not protected action under the Act because it was not related to the employees' terms and conditions of employment. The employer's implementation of the new roster system did not affect the employees' terms and conditions of employment, and therefore the proposed action was not protected action.

The commission dismissed the union's application for an order for a ballot of employees. The union did not have a sufficient basis to demonstrate that there was support for the proposed action, and the proposed action was not protected action under the Act. The commission found that the employer had not acted unlawfully in implementing the new roster system, and that the union's proposed action was not protected action. The union's application was dismissed with no orders for costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established