United Firefighters' Union of Australia v Ventia Pty Limited

[2024] FWC 2718

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Firefighters' Union of Australia
v

Ventia Pty Limited

(B2024/1276)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 30 SEPTEMBER 2024

Proposed protected action ballot of employees of Ventia Pty Limited

This is an application by the United Firefighters’ Union of Australia (UFU 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 Ventia Pty Limited (Ventia or Employer).

On 30 September 2024, 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 Jeremy Murphy, Senior Industrial Officer, setting out the steps taken by the UFU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Ventia, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS 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 17 October 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 PR779770.

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, 12 working days from the making of the Order and was the period sought in the application. This takes account of the additional public holiday observed in NSW during the relevant period.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to consider an application by the United Firefighters’ Union of Australia (UFU) for a protected action ballot order relating to certain employees of Ventia Pty Limited. The application was made under section 437 of the Fair Work Act 2009. The UFU sought the order to facilitate a ballot of its members, who are employed by Ventia, to potentially authorise protected industrial action. The union argued that it had been genuinely attempting to reach an agreement with the employer and that a notification period for the proposed agreement had commenced.

The legal issues before the Commission were whether the UFU had satisfied the conditions set out in section 443 of the Act for making an application for a ballot order, and whether the Commission should grant the application. The UFU needed to demonstrate that it had been genuinely attempting to reach an agreement with the employer and that a notification period for the proposed agreement had commenced. Additionally, the Commission had to determine a suitable closing date for the ballot, taking into account any relevant public holidays.

In making its decision, the Commission noted that Ventia did not object to the application. The Deputy President was satisfied that the UFU had met all the requirements under section 443 of the Act, including showing that it had been genuinely attempting to reach an agreement with the employer and that a notification period had begun. The Deputy President also determined that the ballot would be conducted by Democratic Outcomes Pty Ltd, an approved ballot agent. The Commission set the closing date for the ballot as 17 October 2024, which was 12 working days from the date of the order and took into account a public holiday in New South Wales.

The Commission granted the UFU's application and issued an order for the protected action ballot to be conducted by the specified ballot agent by the determined closing date. Furthermore, the matter was assigned to another member of the Commission to conduct the compulsory conciliation conference under section 448A of the Act. The Commission also issued an order requiring the attendance of all bargaining representatives at the conference, with directions to ensure that the parties were prepared for meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established