United Firefighters' Union of Australia v Ventia Australia Pty Ltd

[2023] FWC 996

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Firefighters’ Union of Australia
v

Ventia Australia Pty Ltd

(B2023/378)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 27 APRIL 2023

Proposed protected action ballot of employees of Ventia Australia Pty Ltd Trading As Ventia Australia Pty Ltd

This is an application by the United Firefighters’ Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Ventia Australia Pty Ltd (Respondent).

On 27 April 2023, my Associate was advised that the Respondent did not object to the protected action ballot order being granted, subject to an amendment to the notice period required for the taking of industrial action from 3 working days to 4 working days (subject to the Commission being satisfied it is appropriate to extend the notice period). In correspondence to my Chambers, the Applicant confirmed that it consented to an extension of the notice period required for the taking of industrial action from 3 working days to 4 working days.

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 Mr Thomas French of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met. I am also satisfied based on the position of the parties and the material before me that there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) of the Act being longer than 3 working days and that I should exercise the discretionary power in s.443(5) of the Act and specify a period of 4 working days.

An order has been separately issued in PR761427.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the United Firefighters’ Union of Australia, seeking a protected action ballot order concerning certain employees of Ventia Australia Pty Ltd. The application was lodged under section 437 of the Fair Work Act 2009. The union aimed to conduct a ballot for potential protected actions, but required approval from the Commission to do so. The Commission's Deputy President, Clancy, presided over the matter, which was resolved without a hearing on 27 April 2023.

The legal issues central to the decision revolved around whether the union had genuinely attempted to reach an agreement with the employer, whether the notification period for the proposed agreement met the requirements of the Act, and if there were exceptional circumstances warranting an extension of the notice period for industrial action. The union argued that it had made genuine efforts to negotiate with the employer and that extending the notice period for industrial action would be necessary due to specific circumstances.

The Deputy President, Clancy, found that the union had indeed taken steps to bargain with the employer and had genuinely tried to reach an agreement. The evidence provided, including a declaration from Mr Thomas French of the union, supported these claims. The Commission was also satisfied that the notification period for the proposed agreement met the statutory requirements. Furthermore, the Deputy President determined that exceptional circumstances existed, justifying an extension of the notice period for industrial action from three to four working days.

Consequently, the Fair Work Commission granted the union's application for a protected action ballot order, with the condition that the notice period for industrial action be extended to four working days. This decision was made in light of the union's genuine negotiation efforts, the adequacy of the notification period, and the presence of exceptional circumstances.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established