Transport Workers' Union of Australia v Ventia Australia Pty Ltd

[2024] FWC 1487

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v

Ventia Australia Pty Ltd

(B2024/731)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 6 JUNE 2024

Proposed protected action ballot of employees of Ventia Australia Pty Ltd.

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 Ventia Australia Pty Ltd (Ventia or Employer).

On 6 June 2024, the Commission was advised that the Employer did not object to the Application.

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 Kim Scarlett, Organiser, 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 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 Vero Engagement and Voting Solutions Pty Ltd (Vero). Vero 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 17 June 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR775760.

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, 10 days from the making of the Order and was sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked by the Transport Workers' Union of Australia to allow a protected action ballot for certain employees of Ventia Australia Pty Ltd. This application was made under section 437 of the Fair Work Act 2009. The employer, Ventia Australia Pty Ltd, did not object to the application, and the matter was decided on the papers without a hearing. The union aimed to conduct the ballot to determine if employees would support protected actions, such as strikes or lockouts, as part of their bargaining process.

The legal issues the court needed to address were whether the union had genuinely attempted to reach an agreement with the employer and if all the requirements under section 443(1) of the Act were met. The union provided a declaration from an organiser that outlined the steps taken during negotiations and confirmed their genuine efforts. The court also needed to determine the closing date for the ballot and ensure the ballot agent, Vero Engagement and Voting Solutions Pty Ltd, was approved to conduct the ballot.

The Deputy President was satisfied that the union had genuinely tried to reach an agreement and that all legal requirements were met. The ballot was to be conducted by Vero, which had been approved as a ballot agent. The court set the closing date for voting as 17 June 2024, which aligns with the 10-day period requested in the application. Additionally, the matter will be assigned to another Commissioner to conduct a compulsory conciliation conference under section 448A of the Act. This conference will require the attendance of all bargaining representatives and may include directions to ensure meaningful negotiations.

The court issued an order allowing the ballot to proceed and assigned the compulsory conciliation conference to another Commissioner. The orders ensure that the ballot will be conducted properly and that efforts to reach a resolution will continue through conciliation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established