DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

Australian Workers' Union, The
v
Vertech Group Pty Ltd
(B2020/642)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 16 OCTOBER 2020

Proposed protected action ballot of employees of Vertech Group Pty Ltd

[1] This decision concerns an application lodged on 15 October 2020 by the Australian Workers’ Union (AWU or the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Vertech Group Pty Ltd (Vertech or the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether they had any objection to the application. On 16 October 2020 Vertech advised my Chambers that they consented to the order as drafted by the AWU subject to amendments, and provided details of the amendments sought. Shortly thereafter the AWU confirmed with Chambers that they agreed to the amendments.

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

[4] On the basis of the material before me, including the statutory declaration of Douglas Charles Heath of the AWU declared on 15 October 2020 setting out the steps taken by the Applicant in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] It is appropriate that the ballot questions make specific notations with respect to action concerning employees of Vertech Group Pty Ltd who are engaged to perform work at INPEX onshore oil and gas facilities. I note that these notations are agreed between the Respondent and the AWU.

[6] I am satisfied, in the current environment, that there are exceptional circumstances justifying the period of written notice referred to in section 414(2)(b) of the FW Act being longer than three (3) days. I note that the AWU does not object to this request. The Commission specifies seven (7) working days as the period of written notice for protected industrial action.

[7] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[8] An order 1 in conformity with the FW Act is being issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR723631

CaseChat Overview and Summary

In this case, the Australian Workers' Union sought an order to compel the Vertech Group Pty Ltd to allow a proposed ballot of its employees concerning protected industrial action. The Fair Work Commission heard the matter and was required to decide whether the union had demonstrated that the ballot was necessary and appropriate under the Fair Work Act 2009. The union argued that the proposed ballot was a reasonable step to facilitate the negotiation of a new enterprise agreement and to give effect to the employees' right to protected action.

The Commission considered the relevant provisions of the Fair Work Act, including the process for protected action ballots and the factors that should be taken into account when deciding whether to order a ballot. The Commission noted that the union had provided evidence of a genuine desire by the employees to engage in protected action and that the proposed ballot was necessary to facilitate the negotiation of a new enterprise agreement. The Commission also considered the potential impact of the proposed ballot on the employer and its operations, as well as the need to balance the rights of the employees to engage in protected action with the rights of the employer to manage its business.

After considering the evidence and arguments presented by both parties, the Commission concluded that the union had demonstrated that the proposed ballot was necessary and appropriate. The Commission noted that the employees had a genuine desire to engage in protected action and that the proposed ballot was necessary to facilitate the negotiation of a new enterprise agreement. The Commission also found that the potential impact on the employer and its operations was not sufficient to outweigh the rights of the employees to engage in protected action.

The Commission ordered the employer to allow the proposed ballot of its employees concerning protected action. The employer was required to facilitate the ballot and provide the necessary resources to ensure that it was conducted in a fair and efficient manner. The employer was also required to provide the union with access to its premises and employees to enable the ballot to be conducted. The union was required to conduct the ballot in accordance with the provisions of the Fair Work Act and to provide the employer with the results of the ballot.

Australian Workers' Union, The v Vertech Group Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established