Australian Workers' Union v Ventia Pty Ltd Summary

[2023] FWC 3037

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Ventia Pty Ltd

(B2023/1269)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 21 NOVEMBER 2023

Proposed protected action ballot of employees of Ventia 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 Pty Ltd (Ventia or Employer).

On 17 November 2023, the Commission was advised that Ventia did not, in effect, object to the Application as amended.[1]

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 Mr Steve Ackerman, 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 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 Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[2] 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 5 December 2023.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR768431.

I observe that clauses six (6) to eight (8) of the Applicant’s proposed order has been reordered to reflect the Commission’s standard approach to protected action ballot orders.

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] On 17 November 2023, the parties agreed to amend Items 17 and 18 within Clause 5 of the proposed Order.

[2] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[3] This is, in effect, ten (10) working days from the date of effect of the Order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Australian Workers' Union versus Ventia Pty Ltd, the applicant, the Australian Workers’ Union, applied to the Fair Work Commission for a protected action ballot order under section 437 of the Fair Work Act 2009. The application was made in relation to certain employees of the respondent, Ventia Pty Ltd. The Union sought the order to enable a ballot of its members to determine if they would support protected industrial action in the event of a failure to reach an enterprise agreement.

The primary legal issue before the Deputy President was whether the application met the criteria set out in section 443 of the Fair Work Act. This includes whether the notification period for the proposed agreement had elapsed, and whether the Union had genuinely attempted to reach agreement with the employer. The Union had to demonstrate that it had been genuinely trying to reach agreement with the employer, and that a notification period in relation to the proposed agreement had expired.

After considering the evidence provided, the Deputy President was satisfied that the Union had genuinely attempted to reach an agreement and that a notification period had expired. The Deputy President also noted that the Union had taken the necessary steps to conduct a ballot, including appointing an approved ballot agent. The Deputy President set a closing date for the ballot of 5 December 2023, which established the ballot period. The Deputy President also reordered clauses six to eight of the applicant’s proposed order to align with the Commission’s standard approach to protected action ballot orders. The matter will be assigned to another member of the Commission to conduct a compulsory conciliation conference.

The Deputy President issued an Order determining the matter on the papers and setting out the closing date for the ballot. The matter will be referred to another member of the Commission to conduct a compulsory conciliation conference. The Commission will also issue directions to ensure that the parties attend the conference ready to conduct meaningful negotiations.

Australian Workers' Union v Ventia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established