Australian Workers' Union, The v Veolia Environmental Services (Australia) Pty Ltd

[2025] FWC 130

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union, The
v

Veolia Environmental Services (Australia) Pty Ltd

(B2025/31)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 14 JANUARY 2025

Proposed protected action ballot of employees of Veolia Environmental Services (Australia) Pty Ltd

The Australian Workers’ Union (AWU or Applicant) has made an application under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Veolia Environmental Services (Australia) Pty Ltd (Veolia or Employer).

I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)[1] and the Construction, Forestry and Maritime Employees Union (CFMEU)[2] have made separate applications for a protected action ballot order in relation to the same proposed enterprise agreement.

On 14 January 2025, I held a directions hearing, by telephone, during which the Employer advised that they did not object to the AWU’s application.

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

On the basis of the material before me, including the declaration of Shane Klein, Organiser, setting out the steps taken by the AWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Veolia, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act 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 is 29 January 2025. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR783282.

I will conduct the s.448A compulsory conciliation conference in due course. An Order requiring the attendance of all bargaining representatives in relation to the proposed enterprise agreement will be issued along with directions ensuring that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] B2025/28.

[2] B2025/30

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union has applied to the Fair Work Commission for a protected action ballot order under section 437 of the Fair Work Act 2009. The union seeks to conduct a ballot among certain employees of Veolia Environmental Services (Australia) Pty Ltd. This application arises from ongoing negotiations for an enterprise agreement, with the union aiming to secure improved terms and conditions for its members. The union has also declared its intention to take protected action if an agreement cannot be reached. The employer, Veolia Environmental Services (Australia) Pty Ltd, has not opposed the application, facilitating the Commission's decision-making process.

The primary legal issue before the Deputy President was whether the union had satisfied the statutory criteria for a protected action ballot order, including the notification time for the proposed agreement and adherence to the bargaining requirements under section 443 of the Fair Work Act. The Deputy President needed to assess the union's declaration and the steps taken in the bargaining process to determine if the union had genuinely tried to reach an agreement with the employer. Additionally, the Deputy President had to establish the closing date for the ballot as per section 443(3)(c) of the Act, ensuring that the ballot period was appropriately set.

The Deputy President concluded that the union had fulfilled all necessary requirements for a protected action ballot order. The union's declaration, which included details of the bargaining efforts and the intent to reach an agreement, was deemed sufficient. The Deputy President also found that the notification time for the proposed agreement was met, and the union had genuinely attempted to negotiate with the employer. Consequently, the Deputy President ordered that the ballot be conducted by an approved agent, Democratic Outcomes Pty Ltd (CiVS), with voting to close on 29 January 2025. This decision established the ballot period and set the stage for a compulsory conciliation conference under section 448A of the Act.

In summary, the Fair Work Commission has granted the Australian Workers' Union's application for a protected action ballot order. The Deputy President established the closing date for the ballot and authorised the use of Democratic Outcomes Pty Ltd as the ballot agent. The union will now proceed with the ballot among the employees of Veolia Environmental Services (Australia) Pty Ltd. The Commission will subsequently issue an order for a compulsory conciliation conference, requiring the attendance of all bargaining representatives and directing them to engage in meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established