Australian Workers' Union v Ventia Australia Pty Ltd Summary

[2024] FWC 1838

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Ventia Australia Pty Ltd

(B2024/879)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 12 JULY 2024

Proposed protected action ballot of employees of Ventia Australia Pty Ltd

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 Ventia Australia Pty Ltd (Ventia or Employer).

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

On 12 July 2024, the Commission was advised that the Employer, in effect, did not object to the Application.[2]

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 Chris Newbold, Trade Union Official, 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 Ventia, 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 26 July 2024.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR776965.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matters where a Ballot Order has been, or is subsequently, made. That Member will issue an Order requiring the attendance of all bargaining representatives for the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] Respectively, B2024/877 and B2024/884.

[2] The Application was amended to correct the contact name for the Employer.

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union (AWU) applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of Ventia Australia Pty Ltd. This application was made under section 437 of the Fair Work Act 2009, which allows unions to request a ballot for protected industrial action. The AWU sought this order to facilitate a vote among its members regarding potential protected action. The application was filed in the context of ongoing negotiations for a proposed enterprise agreement, with the AWU asserting its efforts to reach an agreement with Ventia.

The central legal issues before the Fair Work Commission were whether the AWU had satisfied all the statutory requirements for the ballot, including the notification period and the genuineness of the union's efforts to negotiate. The Commission also needed to determine if the ballot agent, Democratic Outcomes Pty Ltd, was eligible and authorised to conduct the ballot. The Commission had to ensure that the ballot process would be conducted fairly and in compliance with the Act.

The Deputy President, Hampton, determined that the AWU had met all the statutory requirements for the ballot, including the notification period and the demonstration of genuine bargaining efforts. The Commission was satisfied that the AWU had genuinely tried to reach an agreement with Ventia, as evidenced by the declaration of Chris Newbold, a Trade Union Official. Additionally, Democratic Outcomes Pty Ltd was confirmed as an approved ballot agent, thereby authorised to conduct the ballot. The Commission set the closing date for the ballot as 26 July 2024, which was 10 working days from the date of the Order. Consequently, an Order was made in favour of the AWU's application.

The Commission also noted that separate applications for a ballot had been made by the Australian Manufacturing Workers’ Union and the Construction, Forestry and Maritime Employees Union. The matter will proceed to a compulsory conciliation conference, to be conducted by another Member of the Commission, to facilitate further negotiations.

Australian Workers' Union v Ventia Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established