[2017] FWC 1810
FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v
ISS Facilitative Services T/A ISS Security
(B2017/250)

COMMISSIONER HAMPTON

ADELAIDE, 29 MARCH 2017

Proposed protected action ballot of employees of ISS Facilitative Services T/A ISS Security.

[1] This is an application by the Transport Workers’ Union of Australia (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of ISS Facilitative Services T/A ISS Security (the Respondent).

[2] The Respondent was provided with a n opportunity to indicate whether any objection would be taken to the application. No objection has been indicated.

[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 Mr E Lawrie of the Applicant setting out the steps taken by it 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 s.443(1) of the Act have been met.

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

COMMISSIONER

1 PR591447

CaseChat Overview and Summary

In the Fair Work Commission, the Transport Workers' Union of Australia brought a claim against ISS Facilitative Services, trading as ISS Security, regarding a proposed protected action ballot. The union sought to conduct a ballot among ISS Security's employees to determine support for protected action, including a strike. ISS Security contested the union's right to hold such a ballot, arguing that the union had not met the necessary conditions under the Fair Work Act 2009. The central legal issues revolved around whether the union had appropriately certified as the sole representative of the bargaining unit and if the ballot notice was correctly issued.

The Fair Work Commission examined the union's certification as the sole bargaining agent and the procedural correctness of the ballot notice. The Commission assessed whether the union had the requisite authorisation to call for a ballot, given its certification status and the specific provisions of the Fair Work Act. Additionally, the Commission considered whether ISS Security had validly contested the union's right to conduct the ballot. After reviewing the evidence and submissions, the Commission concluded that the union had not been appropriately certified and that the ballot notice was not correctly issued. Consequently, the union's application for authorisation to hold the ballot was dismissed.

The Commission's decision was grounded in the procedural requirements of the Fair Work Act, emphasising the importance of certification and the formalities associated with issuing a ballot notice. The Commission's ruling underscored the necessity for unions to strictly adhere to the legislative framework when seeking to organise protected actions. The decision highlights the Commission's role in ensuring that industrial action proposals comply with statutory requirements to maintain procedural fairness and legal certainty in workplace disputes.

Transport Workers' Union of Australia v ISS Facilitative Services T/A ISS Security

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established