Transport Workers' Union of Australia v Veolia Environmental Services (Australia) Pty Ltd

[2022] FWC 2924

[2022] FWC 2924

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Veolia Environmental Services (Australia) Pty Ltd

(B2022/1642)

DEPUTY PRESIDENT DEAN CANBERRA, 3 NOVEMBER 2022

Proposed protected action ballot of employees of Veolia Environmental Services (Australia) Pty Ltd.

1. The Transport Workers’ Union of Australia (TWU) has made an application for a protected action ballot order (PABO) pursuant to s. 437 of the Fair Work Act 2009.

1. The application seeks to ballot employees of Veolia Environmental Services (Australia) Pty Ltd (Respondent) who are members of, and represented by, the TWU for a proposed agreement to replace the Suez Penrith City Council Agreement 2019 (the Agreement) which has passed its nominal expiry date.

1. The Respondent did not oppose the making of a protected action ballot order, however it opposed two of the ballot questions in the draft order provided by the TWU and sought to extend the period of written notice required under the ballot order beyond three working days.

1. Following a conference conducted by telephone on 3 November 2022, the parties reached a consent position in which the period of notice be extended to four working days and the Respondent withdrew its objection pertaining to the ballot questions.

1. Section 443(5) of the Act provides that if there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) being longer than three working days, the protected action ballot order may specify a longer period of up to seven working days.

1. I am satisfied, based on the Respondent’s oral submissions, that there are exceptional circumstances to justify an extension of the notice period specified in s.414 (2)(a) of the Act.

1. I have therefore determined to exercise my discretion to grant an extension of the notice period. I am satisfied that an extension of the notice period from three working days to four working days is appropriate in all the circumstances.

1. On the basis of the material before me, including the statutory declaration of Mr Ho Lau of TWU which set out the steps taken in bargaining with the Respondents, I am satisfied that the TWU has been, and is, genuinely trying to reach agreement with the Respondent, that there is a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the Act have been met. Accordingly, the protected action ballot order must be made.

1. An Order will be issued separately in PR747577.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR747576>