Australian Workers' Union v Ventia Australia Pty Ltd Summary

[2024] FWC 793

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

(B2024/264)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 27 MARCH 2024

Proposed protected action ballot of employees 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).

On 27 March 2024, the Commission was advised that Ventia, in effect, did not object to the 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 Ms Jenny Binegas on behalf of the AWU, 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 the Australian Electoral Commission. 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 13 May 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR772804.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in 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] This is, in effect, 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide on an application by the Australian Workers' Union for a protected action ballot order concerning employees of Ventia Australia Pty Ltd. The union sought to conduct a ballot for protected industrial action under section 437 of the Fair Work Act 2009. Ventia did not object to the application, which led the Deputy President to determine the matter without a hearing. The union provided a declaration by Ms. Jenny Binegas, affirming that it had genuinely attempted to reach an agreement with Ventia and that all conditions for the ballot under section 443(1) of the Act were satisfied.

The legal issues before the Deputy President Hampton involved verifying whether the union had met the requirements of section 443(1) of the Fair Work Act to conduct a protected action ballot. This included confirming that there was a notification time in relation to the proposed agreement and that the union had genuinely attempted to reach an agreement with the employer. Additionally, the court needed to set a date by which voting in the ballot would close, ensuring it aligned with the Australian Electoral Commission's requirements.

The Deputy President found that all requirements for the ballot had been met based on the evidence provided by the union. The union's declaration and the lack of objection from Ventia were sufficient to satisfy the conditions of section 443(1) of the Act. The court set the closing date for the ballot as 13 May 2024, which allowed the Australian Electoral Commission 30 working days to conduct the ballot. The Deputy President also directed that the matter be assigned to another member of the Commission for a compulsory conciliation conference under section 448A, with further directions to ensure meaningful negotiations between the parties.

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