Transport Workers' Union of Australia v ZircoData Services Pty Ltd

[2025] FWC 2774

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v

ZircoData Services Pty Ltd

(B2025/1451)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 17 SEPTEMBER 2025

Proposed protected action ballot of employees of ZircoData Services Pty Ltd – non-AEC ballot agent electronic voting

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 ZircoData Services Pty Ltd (ZircoDATA or Employer).

On 17 September 2025, the Commission was advised that the Employer, in effect, 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 Harwinder Singh, Official, 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 ZircoDATA, 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 Fair Vote Services Pty Ltd (Fair Vote). Fair Vote 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 1 October 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR791812.

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 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia (TWU) lodged an application under section 437 of the Fair Work Act 2009 (Act) with the Fair Work Commission for a protected action ballot order in relation to certain employees of ZircoData Services Pty Ltd. The application was made to facilitate a ballot for potential protected action among the employees of ZircoData Services Pty Ltd, and the TWU sought the Commission's approval for the use of electronic voting conducted by Fair Vote Services Pty Ltd, an approved ballot agent. On 17 September 2025, the Commission was informed that the employer did not object to the application, prompting the Deputy President to decide the matter based on the available documentation without the need for a hearing.

The primary legal issues for the Commission to determine included whether the TWU had genuinely attempted to reach an agreement with the employer, and whether all legislative requirements for conducting the ballot had been satisfied. The Commission had to consider if the notification period for the proposed agreement was appropriate and if the ballot agent was suitably qualified to conduct the ballot. Furthermore, the Commission needed to set a closing date for the voting period, which would also serve as the ballot period for the purposes of the Act.

After reviewing the material provided, including a declaration by Harwinder Singh, an official of the TWU, the Deputy President determined that the TWU had been genuinely attempting to reach an agreement with the employer and that all requirements under section 443(1) of the Act had been met. The Deputy President approved the use of Fair Vote Services Pty Ltd as the ballot agent and set the closing date for voting at 1 October 2025, which was also the period sought in the application. Consequently, an order was issued to conduct a compulsory conciliation conference under section 448A of the Act, requiring the attendance of all bargaining representatives to facilitate meaningful negotiations.

The Commission issued a separate order assigning the matter to another member for the conciliation conference and to issue directions to ensure that the parties are prepared for effective negotiations. This decision ensures that the parties are directed towards meaningful discussions to resolve the issues at hand.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established