United Workers' Union (108V) v Vinidex Pty Ltd

[2024] FWC 1634

[2024] FWC 1634

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union (108V)
v

Vinidex Pty Ltd

(B2024/788)

DEPUTY PRESIDENT ROBERTS SYDNEY, 21 JUNE 2024

Proposed protected action ballot of employees of Vinidex Pty Ltd

1. This is an application by the United Workers' Union (UWU 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 Vinidex Pty Ltd (Vinidex or Employer).

1. The matter was listed for hearing on 20 June 2024. On that date the Commission was advised by Vinidex that they accepted that the UWU was genuinely trying to reach an agreement for the purposes of s.443(1)(b) of the Act. However, Vinidex said that they maintained an objection to the application on the basis that question 10 of the proposed draft order was unclear in its meaning and intent. I have taken the objection to be that the application does not specify the question or questions to be put to employees who are to be balloted, including the nature of the proposed industrial action, contrary to the requirements of s.437(3)(b). Vinidex referred to the decision in Health Services Union v. Uniting AgeWell Ltd t/as Uniting AgeWell[1] (Uniting AgeWell) in support of its submission.

1. As the matter was brought on at short notice, the objection had not previously been brought to the attention of the Applicant. In the circumstances, I decided to give the UWU an opportunity to provide written submissions in response to the objection. Vinidex was also given an opportunity to provide written submissions in reply.

1. Question 10 of the UWU’s proposed draft order, including the preamble, is in the following terms:

In support of reaching an enterprise agreement with your employer, do you authorise the taking of protected industrial action against your employer separately, concurrently and/or consecutively, in the form of:

An unlimited number of indefinite or periodic bans on the performance or acceptance of work without a union t-shirt worn over, or instead of the prescribed uniform (excluding any required personal protective equipment)?

1. Vinidex ultimately argued that a clause in similar but not identical terms be included in any draft order. Their proposed wording was as follows:

In support of reaching an enterprise agreement with your employer, do you authorise the taking of protected industrial action against your employer separately, concurrently and/or consecutively, in the form of:

An unlimited number of indefinite or periodic bans on performing work unless a long sleeve hi-vis union t-shirt is worn over, or instead of, the prescribed employee uniform (excluding any required personal protective equipment)?

1. Vinidex said that the wording proposed by them would “make it clear to employees they are being asked to vote on taking industrial action in the form of wearing union t-shirts and if they are not able to do this being entitled not to perform work.”

1. In John Holland Pty Ltd v. AMWU[2] a Full Bench of the Commission said that “seen in its statutory context, all that (s.437) requires is that the questions should describe the industrial action in a way that employees are capable of responding to them”.[3] In Total Marine Services Pty Ltd v. MUA[4] a differently constituted Full Bench endorsed the approach of a single member who had concluded that the questions posed in that matter were “sufficient to enable employees to understand the nature of the protected action they will be asked to authorise.”

1. In my view, question 10 of the proposed draft order is capable of being responded to and would be reasonably clear and intelligible to employees to whom the question is being posed. I do not think the decision in Uniting AgeWell assists the Employer’s case in opposition to the proposed draft order. The relevant decisions discussed in that matter deal with circumstances in which there was doubt about whether the action for which approval was sought in the proposed question was capable of constituting industrial action within the meaning of s.19 of the Act. There is no such doubt in the present case. The action in question is the imposition of indefinite or periodic bans in certain specified circumstances. 

1. On the basis of the material before me, including the declaration of Hanna Bushell, Organiser, setting out the background to the bargaining process, the steps taken by the UWU in bargaining and evidence to indicate that the UWU has been, and is, genuinely trying to reach agreement with Vinidex, 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. I am also satisfied that the application was provided to the employer and the ballot agent in accordance with s.440 of the Act.

1. 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.

1. 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 12 July 2024.[5] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. An Order has been separately issued in PR776297.

DEPUTY PRESIDENT

[1] [2023] FWC 392.

[2] (2010) 194 IR 239.

[3] Ibid at [19].

[4] (2009) 189 IR 407 at [38].

[5] This is, in effect, fifteen (15) working days from the date of the Order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

<PR776298>