Transport Workers' Union of Australia v Ventia Pty Limited T/A Ventia Summary

[2023] FWC 1791

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v

Ventia Pty Limited T/A Ventia

(B2023/731)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 24 JULY 2023

Proposed protected action ballot of employees of Ventia Pty Limited Trading As Ventia

This is an application by the Transport Workers' Union of Australia (TWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Respondent, Ventia Pty Limited T/A Ventia (Ventia or Employer).

On 24 July 2023, the Commission was advised that the Employer did not object to the Application on the basis of an amended draft Order which clarified the questions to be put in the ballot.

In the circumstances, I have conducted a short hearing to seek clarification regarding one of the proposed questions. Having heard the parties, I subsequently issued the PABO with an additional change accepted by both parties.

On the basis of the material before me, including the declaration of Mr William Cheffirs, TWU Industrial Officer, 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 Ventia, 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 the Australian Electoral Commission. For the purposes of s.443(3)(c) and s.448A(2) of the Act, a ballot period of 30 working days from the date of the Order (24 July 2023) has been established by this Commission.[1]

An order has been separately issued in PR764457.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference and this Member will issue the Order requiring attendance 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

Appearances:

M Spring for the Transport Workers’ Union of Australia.

F James for Ventia Pty Limited.

Hearing details:

Adelaide (by telephone)
2023
July 24.

[1] This is the minimum period required by the Australian Electoral Commission.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia (TWU) filed an application under section 437 of the Fair Work Act 2009, requesting a protected action ballot order concerning specific employees of Ventia Pty Limited, trading as Ventia. The application aimed to facilitate a ballot to determine the employees' willingness to engage in protected action. The matter was heard by Deputy President Hampton of the Fair Work Commission in Adelaide on 24 July 2023. Notably, Ventia did not object to the application, provided that certain amendments to the proposed ballot questions were made. Consequently, a short hearing was conducted to clarify one of the proposed questions, resulting in an additional change accepted by both parties.

The primary legal issues that the court had to address were whether the TWU had genuinely attempted to reach an agreement with Ventia and whether all the requirements outlined in section 443(1) of the Act were fulfilled. The Deputy President considered the declaration of Mr William Cheffirs, the TWU Industrial Officer, who outlined the steps taken in bargaining with Ventia and confirmed the union's genuine efforts to reach an agreement. The court had to determine if the notification time for the proposed agreement was met and if all procedural requirements were adhered to before issuing the protected action ballot order.

Upon reviewing the evidence and submissions, the Deputy President concluded that the TWU had genuinely tried to reach an agreement with Ventia, and all requirements under section 443(1) of the Act were met. The court issued the protected action ballot order with an amended draft, establishing a 30-working-day ballot period commencing from 24 July 2023. The Australian Electoral Commission was tasked with conducting the ballot. A separate order was issued in PR764457, and the matter will be assigned to another Member of the Commission to conduct the compulsory conciliation conference under section 448A of the Act. Directions will likely be issued to ensure that the parties are prepared for meaningful negotiations at the conference.

Transport Workers' Union of Australia v Ventia Pty Limited T/A Ventia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established