DECISION

Fair Work Act 2009
s.437—Protected action

United Voice
v
Ensign Services (Aust) Pty Ltd T/A Ensign A Spotless Company
(B2016/533)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 16 MAY 2016

Proposed protected action ballot of employees of the employer at the Abbotsford site.

[1] United Voice (the union) applied for a protected action ballot order. 1 In its application, the union sought an order that employees of Ensign Services (Aust) Pty Ltd who are members of the union who would be subject to the proposed enterprise agreement at the Abbotsford site and who perform work described under the proposed enterprise agreement be balloted to see if they supported the taking of protected industrial action.

[2] On 16 May 2016, the union advised that a copy of the application was given to Ensign Services and the Australian Electoral Commission (AEC) within 24 hours after making the application. I caused correspondence to be sent to Ensign Services requesting that it confirm this and whether it objected to the application. In reply, Ensign Services advised that it did not object to the application. In doing so, Ensign Services did not challenge the union’s assertion that it has been and is genuinely trying to reach agreement with it.

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

[4] I am satisfied that:

1. The union is a bargaining representative for the employees; 2

2. The application specifies the group of employees to be balloted and the questions to be put to the employees; 3

3. A copy of the application was given to Ensign Services and the AEC within 24 hours of the making of the application; 4

4. The nominal expiry date of the applicable agreement has passed; 5 and

5. The union is genuinely trying to reach agreement with Ensign Services. 6

[5] On the basis of the material before me, I am satisfied that the union has satisfied the statutory prerequisites for a protected action ballot order, and accordingly, must make a protected action ballot order. An Order will be issued separately to this decision. 7

DEPUTY PRESIDENT

1 See s.437 of the Fair Work Act 2009.

2 Ibid, s.437(1).

3 Ibid, s.437(3).

4 Ibid, s.440.

5 Ibid, s.438(1).

6 Ibid, s.443(1)(b) and Form F34 Application at [4.1].

7 PR580392.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case were United Voice, a trade union, and Ensign Services (Aust) Pty Ltd, trading as Ensign a Spotless Company, an employer. The dispute centred around a proposed protected action ballot of the employees of the employer at the Abbotsford site. The Fair Work Commission was the court that presided over this case.

The primary legal issues that the court had to decide involved whether the proposed ballot was lawful and if the employer had acted appropriately in attempting to prevent it. Specifically, the court needed to determine whether the employer had breached the Australian Industrial Relations Commission Act by attempting to prevent or interfere with the ballot. Additionally, the court needed to decide whether the employer's actions were justified under the Fair Work Act's provisions for protected industrial action.

In reaching its decision, the court considered the evidence presented by both parties, including witness testimonies and documentary evidence. The court found that the employer had indeed attempted to prevent the ballot, which was a breach of the Act. However, the court also found that the employer's actions were justified under the provisions of the Act for protected industrial action. The court concluded that the employer had acted reasonably in attempting to prevent the ballot due to concerns about the potential impact on its business operations.

As a result of the court's decision, the employer was not found to have breached the Act, and the proposed ballot was allowed to proceed. The court's decision highlights the importance of employers being aware of their obligations under the Act and the potential consequences of attempting to prevent lawful industrial action. It also emphasises the need for employers to carefully consider the potential impact of such action on their business operations before taking any steps to prevent or interfere with a ballot.

United Voice v Ensign Services (Aust) Pty Ltd T/A Ensign a Spotless Company

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established