Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Ventia Australia Pty Ltd Summary

[2023] FWC 1021

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

Ventia Australia Pty Ltd

(B2023/384)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 1 MAY 2023

Proposed protected action ballot of employees of Ventia Australia Pty Ltd

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (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(Respondent).

The Respondent initially advised my Chambers that it objected to the protected action ballot order being made but did not ultimately outline a statutory basis that would support the application not being granted and nor did it request to be heard further in addition to its correspondence outlining its initial position. The Respondent instead advised my Chambers that the parties had arrived at an agreed position to amend an aspect of the draft order.

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 Nicholas McCubbin of the Applicant setting out the steps taken by it in bargaining with the Respondent and 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 s.443(1) of the Act have been met.

An order has been separately issued in PR61516.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Ventia Australia Pty Ltd (Respondent). The Applicant sought the order to facilitate a ballot on proposed protected action, which typically involves industrial action such as strikes or lockouts. The Respondent initially objected to the order but did not provide a statutory basis for its objection and did not request a hearing, instead indicating that the parties had reached an agreed position on an aspect of the draft order. Consequently, the Deputy President determined the matter on the papers.

The central legal issue in this case was whether the conditions set out in section 443(1) of the Fair Work Act were satisfied, which include the requirement that the union genuinely be attempting to reach an agreement with the employer. The Applicant had to demonstrate that it had been genuinely trying to reach an agreement with the Respondent and that there was a notification time for the proposed agreement. The Respondent's objections were not substantiated with statutory grounds or a request for a hearing, which influenced the decision-making process.

The Deputy President concluded that the Applicant had met the requirements for a protected action ballot order. The evidence provided, including the declaration of Mr Nicholas McCubbin of the Applicant, substantiated that the union had genuinely attempted to reach an agreement with the Respondent. Additionally, the notification time for the proposed agreement was established. Therefore, the Deputy President decided to grant the order without a hearing, as the Respondent did not contest the application effectively. An order was separately issued in PR61516.

The Fair Work Commission granted the application for a protected action ballot order. The Respondent's lack of a substantiated objection and its indication of an agreed position on a draft order aspect led to the decision being made on the papers. The Deputy President confirmed that the union's efforts to reach an agreement and the notification time were adequately demonstrated, thus fulfilling the legal requirements for the protected action ballot order.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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