The Australian Workers' Union v Innovative Asset Solutions Pty Ltd

[2024] FWC 1665

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

The Australian Workers' Union
v

Innovative Asset Solutions Pty Ltd

(B2024/811)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 26 JUNE 2024

Proposed protected action ballot of employees of Innovative Asset Solutions 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 Innovative Asset Solutions Pty Ltd (IAS or Employer).

On 25 June 2024, the Commission was advised that the Employer did not object to the Application following discussion between the parties. The parties communicated a consent position. Accordingly, I have decided that the matter will be determined on the papers without the need for a hearing.

On the basis of the material before me, including the declaration of Ross Kumeroa, Offshore Alliance 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 it, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act 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 11 July 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of 5 working days written notice for the purposes of s.414(2)(b) of the Act when taking the industrial action set out in clause 5 of the Order made by the Commission.

An Order has been separately issued in PR776395.

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 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, 11 working days from the making of the Order and was the date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union has applied to the Fair Work Commission for an order to allow a ballot for protected industrial action by employees of Innovative Asset Solutions Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, and the matter was decided by Deputy President Hampton in Adelaide on 26 June 2024. The employer did not object to the application, and a consent position was communicated to the Commission. The Commission was satisfied that the union had met all requirements for a protected action ballot, including the notification time, and that all conditions under section 443 of the Act had been fulfilled.

The legal issues before the Commission involved determining whether the union had genuinely tried to reach agreement with the employer and whether the union had complied with all statutory requirements for conducting a ballot. The Commission also had to consider the notification period and whether there were exceptional circumstances justifying an extended period for notice of the industrial action. The Commission determined that the ballot agent, Democratic Outcomes Pty Ltd, was approved and authorised to conduct the ballot, and it set the closing date for voting at 11 July 2024.

Deputy President Hampton found that the union had met all the statutory requirements and had genuinely attempted to reach agreement with the employer. The Commission was satisfied that there were exceptional circumstances justifying an extended period of five working days for notice of the industrial action. An order was made to this effect in a separate matter. The Commission also determined that the matter would be referred to another member for a compulsory conciliation conference under section 448A of the Act. This member would issue an order for the attendance of all bargaining representatives and likely issue directions to ensure that the parties were ready to conduct meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established