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

[2022] FWC 2923

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Veolia Environmental Services (Australia) Pty Ltd

(B2022/1639)

DEPUTY PRESIDENT DEAN

CANBERRA, 3 NOVEMBER 2022

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

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.

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 Campbelltown Enterprise Agreement 2018 (the Agreement) which has passed its nominal expiry date.

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.

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.

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.

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.

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.

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.

An Order will be issued separately in PR747575.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was called upon to decide on an application by the Transport Workers' Union of Australia (TWU) for a protected action ballot order (PABO) in relation to employees of Veolia Environmental Services (Australia) Pty Ltd. The TWU sought to ballot its members, who were employees of the Respondent, regarding a proposed agreement to replace the existing Suez Campbelltown Enterprise Agreement 2018, which had expired. The Respondent did not oppose the PABO but did raise objections to certain aspects of the proposed ballot. The primary legal issues before the Deputy President of the FWC were whether there were exceptional circumstances justifying an extension of the notice period for the ballot, and whether the TWU had met the statutory requirements for making the PABO.

The Deputy President found that there were indeed exceptional circumstances that warranted an extension of the notice period from three to four working days, in line with the statutory provision that allows for such an extension. The Deputy President also determined that the TWU had genuinely attempted to reach an agreement with the Respondent and had met all the necessary requirements under the Fair Work Act 2009 for the PABO to be granted. Therefore, the Deputy President concluded that the PABO should be made. The Respondent's objections to the ballot questions were withdrawn, and the period of notice was extended to four working days as part of the consent position reached between the parties.

In light of the above, the Deputy President determined that the PABO should be granted and issued an order accordingly. The specific terms of the order, including the extended notice period and the final wording of the ballot questions, will be detailed in a separate order issued under PR747575. This decision ensures that the process for the proposed agreement replacement is conducted in accordance with the relevant legislative requirements and that the rights of both the employees and the employer are protected.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established