Transport Workers' Union of Australia v Viva Energy Australia Pty Ltd

[2024] FWC 1012

[2024] FWC 1012

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v

Viva Energy Australia Pty Ltd

(B2024/446)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 17 APRIL 2024

Proposed protected action ballot of employees of Viva Energy Australia Pty Ltd

1. 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 Viva Energy Australia Pty Ltd (Viva or Employer).

1. On 16 April 2024, the Commission was advised that the Employer did not object to the Application.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the declaration of Robert Taylor, 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 Viva, 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.

1. The ballot is to be conducted by the Vero Engagement & Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act[1] and consequently is authorised to conduct the ballot.

1. 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 1 May 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. The structure of the draft order has been amended to reflect the Fair Work Commission’s standard template.

1. An Order has been separately issued in PR773610.

1. 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 for 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] [2023] FWC 1351.

[2] This is, in effect, nine (9) working days from the date of the Order, as sought in the application. The Commission has removed reference to the time specified for the closure of the voting on the basis that the Act requires the date by which the voting is to close to be specified, and this includes the whole of the day.

Printed by authority of the Commonwealth Government Printer

<PR773611>