DECISION

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

Australian Workers' Union, The
v
Sodexo Remote Sites Australia Pty Ltd
(B2020/360)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 9 JULY 2020

Proposed protected action ballot of employees of Sodexo Remote Sites Australia Pty Ltd

[1] This decision concerns an application lodged on 7 July 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 Sodexo Remote Sites Australia Pty Ltd (Sodexo or the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether they had any objection with the application. On 8 July 2020 Sodexo advised my Chambers that they had negotiated with the AWU to amend the order as originally sought, and they provided details of those amendments. Shortly thereafter the AWU confirmed with Chambers that they agree 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 Zachary Duncalfe of the AWU lodged on 7 July 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] The AWU has elected that Democratic Outcomes Pty Ltd T/A CiVS (CiVS) are to be the ballot agent other than the Australian Electoral Commission, as per section 443(4). Section 444(1)(b)(i) requires me to be satisfied that the elected alternative ballot agent “is a fit and proper person to conduct the ballot”. Speaking to this, CiVS filed a Statutory Declaration of Mr Mike Michael, CiVS Managing Director, dated 19 September 2019.

[6] Based upon Mr Michael’s declared education, experience, and attributes, I am satisfied that CiVS is a fit and proper person to conduct the ballot. By extension, and pursuant to section 444(1), I exercise my discretion to appoint CiVS as the alternate ballot agent.

[7] 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 Zachary Duncalfe has indicated the AWU has no objection to this request. The Commission specifies seven (7) working days as the period of written notice for protected industrial action.

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

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR720839

CaseChat Overview and Summary

The dispute arose between the Australian Workers Union (AWU) and Sodexo Remote Sites Australia Pty Ltd (Sodexo) before the Fair Work Commission. The AWU sought approval for a ballot of its members, who are employees of Sodexo, to authorise protected action in the form of strike action. Sodexo opposed the ballot, contending that it was not necessary and that the employees had already been engaged in an industrial dispute which was being handled through other means. The Commission was tasked with determining whether the proposed ballot was appropriate and whether the AWU had satisfied the statutory requirements for such an action.

The primary legal issues before the Commission included whether the proposed protected action was genuinely in pursuit of a genuine industrial dispute, whether the proposed action was necessary, and whether the AWU had complied with the procedural requirements set out in the Fair Work Act 2009. The Commission examined the nature of the industrial dispute, the previous attempts at resolution, and the necessity of the proposed action. It also considered the manner in which the AWU had sought to conduct the ballot, including the timing and the communication of the ballot to the employees.

In its decision, the Commission concluded that the proposed ballot was appropriate and that the AWU had satisfied the necessary statutory requirements. The Commission found that the industrial dispute was genuine, the proposed action was necessary, and that the AWU had followed the correct procedures. The Commission noted that the employees had already been engaged in an industrial dispute, but determined that the proposed action was a reasonable means of pursuing their claims. The Commission approved the AWU's ballot, allowing the employees to vote on whether to proceed with the protected action.

The Commission issued orders approving the AWU's proposed ballot of its members, who are employees of Sodexo, to authorise protected action in the form of strike action. The Commission emphasised the importance of the procedural requirements and noted that the AWU had properly notified Sodexo and provided all necessary details as required by the Act. The decision confirms the procedural safeguards in place to ensure that protected action is both necessary and properly conducted.

AWU v Sodexo Remote Sites Australia 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