Transport Workers' Union of Australia v Zircodata Services Pty Ltd Summary

[2024] FWC 2929

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

(B2024/1376)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 22 OCTOBER 2024

Proposed protected action ballot of employees of Zircodata Services Pty Ltd

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 22 October 2024, the Commission was advised that the Employer, in effect, did not object to the Application as amended. The Employer did raise concerns about some of the background material contained in the application and reserved its rights in relation to any subsequent industrial action.

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 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 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 Vero Engagement and Voting Solutions Pty Ltd (Vero Voting). Vero Voting 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 5 November 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR780473.

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) made an application to the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to employees of Zircodata Services Pty Ltd. The application was made to facilitate a ballot for potential protected actions, indicating a dispute in the bargaining process between the union and the employer. Zircodata did not oppose the application outright but expressed reservations about the background material and reserved rights regarding any ensuing industrial action. Consequently, the FWC decided to proceed with the matter based on the submitted documents without the need for a hearing.

The central legal issue before the FWC was whether the conditions set out in section 443 of the Act for granting a protected action ballot order were satisfied. This included verifying if the union had genuinely attempted to negotiate an agreement with the employer and if the notification period for the proposed agreement was met. The TWU provided a declaration from Robert Taylor, an Organiser, detailing the union's efforts to reach an agreement with Zircodata. The FWC had to determine if these efforts were genuine and if all statutory requirements were fulfilled to grant the ballot order.

After reviewing the evidence, Deputy President Hampton determined that the union had genuinely attempted to reach an agreement and that all statutory requirements were met. Consequently, the FWC granted the ballot order and specified that Vero Engagement and Voting Solutions Pty Ltd would conduct the ballot. The voting period was set to close on 5 November 2024, which was effectively 10 working days from the order's issuance. Additionally, the Commission scheduled a compulsory conciliation conference under section 448A of the Act to ensure meaningful negotiations between the parties. Another member of the FWC was assigned to manage this conference and issue the necessary orders for the parties' attendance and preparedness for negotiations.

Transport Workers' Union of Australia v Zircodata Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established