Australian Workers' Union v Melbourne Water Corporation

[2025] FWC 1037

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Melbourne Water Corporation

(B2025/618)

COMMISSIONER YILMAZ

MELBOURNE, 11 APRIL 2025

Proposed protected action ballot of employees of Melbourne Water Corporation

This is an application by the Australian Workers’ Union (AWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Melbourne Water Corporation (Melbourne Water or Employer).

On 10 April 2025, the Commission was advised that the Employer objected to the application on grounds that three of the questions regarding proposed action pose a risk to the welfare of employees and members of the public. I scheduled this matter for a Conference and Hearing on 11 April 2025 and parties were directed to file and serve submissions and evidence in support of their respective positions.

On 11 April 2025, the parties advised that they had reached agreement on the issues in dispute. The AWU subsequently lodged an amended application, the Employer advised in writing that it withdraws its objection, and I vacated the Conference and Hearing.

In light of the parties’ consent position, 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 Uros Rasic, 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 Melbourne Water, 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 Vero Engagement & Voting Solutions Pty Ltd (Vero Voting). Vero Voting 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 30 April 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR786061.

I will proceed to conduct the s.448A compulsory conciliation conference and will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference.

COMMISSIONER

[1] This is, in effect, 10 working days from the making of the Order and was the date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application from the Australian Workers’ Union (AWU) for a protected action ballot order concerning employees of Melbourne Water Corporation (Melbourne Water). The AWU sought to conduct a ballot for potential industrial action under section 437 of the Fair Work Act 2009. Melbourne Water initially objected to the ballot on the grounds that some of the proposed questions posed risks to employee and public welfare. However, the parties reached an agreement, and Melbourne Water subsequently withdrew its objection. Consequently, the matter proceeded on the basis of the parties' consent position.

The central legal issues before the Commission were whether the AWU had complied with the notification requirements and other statutory provisions for conducting a protected action ballot. Specifically, the Commission had to determine if the AWU had genuinely attempted to reach an agreement with Melbourne Water and if all procedural requirements under the Fair Work Act were satisfied. Additionally, the Commission needed to ensure that the proposed ballot was conducted by an approved ballot agent, in this case, Vero Engagement & Voting Solutions Pty Ltd, which had been duly authorised under section 468A of the Act.

In making its decision, the Commission considered the declaration of Uros Rasic, the AWU Organiser, which outlined the union’s bargaining efforts and its commitment to reaching an agreement with Melbourne Water. The Commission was satisfied that the AWU had complied with all necessary steps and that the conditions for a protected action ballot were met. Commissioner Yilmaz determined that the ballot would close on 30 April 2025, establishing the ballot period as per section 448A(2) of the Act. The Commissioner also issued an order for a compulsory conciliation conference under section 448A, requiring the attendance of all bargaining representatives in the proposed enterprise agreement.

The Commission issued an order approving the AWU's application for a protected action ballot and setting the closing date for the ballot as 30 April 2025. Commissioner Yilmaz also mandated the conciliation conference to facilitate further negotiations between the parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established