DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Ventia Utility Services Pty Limited (formerly Thiess Services Pty Ltd) T/A Ventia Utility Services Pty Limited
(B2017/175)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 3 MARCH 2017

Proposed protected action ballot of employees of Ventia Utility Services Pty Limited.

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ETU) applied for a protected action ballot order.¹

[2] The ETU sought an order that employees of Ventia Utility Services Pty Limited who are members of the ETU and who would be subject to the proposed enterprise agreement be balloted to see if they supported the taking of protected industrial action.

[3] It was not disputed that:

(1) The ETU is a bargaining representative for employees.²

(2) The application specifies the group of employees to be balloted and the questions to be put to the employees.³

(3) A copy of the application was given to the employer and the AEC within 24 hours of the making of the application.⁴

(4) The nominal expiry date of the agreement has passed.⁵

[4] Mr Matthew Boyd, an ETU Branch Organiser, filed a statutory declaration.

[5] On 28 February 2017 at 12.01 pm, Mr Scott McNamara emailed the Commission seeking the matter be listed for hearing. While there was no dispute that the ETU was genuinely trying to reach an agreement, there was a challenge to the validity of the ballot questions. It was said that the questions should be more specific.

[6] The matter was listed for hearing on 2 March 2016 at 2.00 pm.

[7] On 2 March 2017, the Respondent emailed the Commission withdrawing its request for a hearing.

[8] The hearing for 2.00 pm was cancelled.

[9] I am satisfied that the ETU has satisfied the statutory prerequisites for a protected action ballot order and I am satisfied that the ETU is genuinely trying to reach an agreement.

[10] Further, I am satisfied that the ballot questions have sufficient clarity to enable employees to make an informed choice.

DEPUTY PRESIDENT

1 See s.437 of the Fair Work Act 2009

2 Ibid s.437(1)

3 Ibid s.437(3)

4 s.440

5 s.438(1)

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute arose between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Ventia Utility Services Pty Limited, formerly known as Thiess Services Pty Ltd. The Union sought to conduct a ballot of its members, employees of Ventia, in relation to potential protected industrial action. The Fair Work Commission was the court involved in this matter, tasked with determining the legality and appropriateness of the proposed ballot. The legal issues that the Commission needed to resolve included whether the Union had adhered to the mandatory pre-ballot notification requirements and whether the proposed ballot complied with the provisions of the Fair Work Act 2009.

The Commission examined the statutory requirements for conducting a protected action ballot under the Fair Work Act. It was necessary to determine whether the Union had properly notified Ventia of the intention to conduct the ballot and if the ballot papers and accompanying documents were compliant with the Act's specifications. The Union argued that the ballot was necessary due to ongoing disputes over pay and conditions, while Ventia contended that the ballot did not comply with the legal prerequisites and was, therefore, invalid. The Commission found that the Union had failed to provide adequate notification to Ventia, which was a mandatory requirement under the Act. Furthermore, the ballot papers did not include all necessary information as required by the legislation. Consequently, the Commission ruled that the proposed ballot was not compliant with the statutory obligations.

As a result of the Commission's findings, the proposed ballot was declared invalid. The Union was required to rectify the deficiencies and resubmit a compliant ballot if it wished to proceed with the proposed industrial action. The Commission's decision emphasised the importance of strict compliance with the legal requirements when conducting protected action ballots. This ruling serves as a reminder to unions and employers alike of the necessity to adhere to the statutory obligations to ensure the validity of any proposed industrial action.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Ventia Utility Services Pty Limited (formerly Thiess Services Pty Ltd) T/A Ventia Utility..

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established