Transport Workers' Union of Australia v Independent Living Specialists Pty Limited

[2024] FWC 3490

[2024] FWC 3490

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v

Independent Living Specialists Pty Limited

(B2024/1638)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 16 DECEMBER 2024

Proposed protected action ballot of employees of Independent Living Specialists Pty Limited

1. This is an application by the Transport Workers’ Union of Australia (TWU 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 Independent Living Specialists Pty Limited (Independent Living Specialists or Employer).

1. On 13 December 2024, the Commission was advised that the Employer, in effect, did not object to the Application but raised concerns about aspects of the TWU’s characterisation of the bargaining process and the proposed ballot period.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the declaration of Luke Ikladios, TWU Official, setting out the steps taken by the TWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Independent Living Specialists, 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.

1. The ballot is to be conducted by Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

1. 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 6 January 2025. The TWU sought the ballot to close 7 days from the commencement of the ballot, which can commence no less than 3 working days after the making of the Order given the requirements of clauses 6 and 7. As the date proposed would then fall during the closure of Fair Vote, the next available business day is 6 January 2025. In setting the ballot closure date I have also had regard to all of the circumstances of this matter as known to the Commission in giving effect to the relevant requirements of the Act. This date also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. An Order has been separately issued in PR782454.

1. 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

Printed by authority of the Commonwealth Government Printer

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