United Workers’ Union v Summary

[2023] FWC 122

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Sydney Aquarium Company Pty Ltd T/A Sea Life Sydney Aquarium; Melbourne Underwater World Pty Ltd T/A Sea Life Melbourne Aquarium; Underwater World Sunshine Coast Pty Ltd T/A Sea Life Sunshine Coast; The Otway Fly Pty Ltd T/A Otway Fly Treetop Adventures; Centre Melbourne Pty Ltd T/A Legoland Discovery Centre
(B2023/31)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 17 JANUARY 2023

Proposed protected action ballot of employees of Sydney Aquarium Company Pty Ltd T/A Sea Life Sydney Aquarium; Melbourne Underwater World Pty Ltd T/A Sea Life Melbourne Aquarium; Underwater World Sunshine Coast Pty Ltd T/A Sea Life Sunshine Coast; The Otway Fly Pty Ltd T/A Otway Fly Treetop Adventures; Centre Melbourne Pty Ltd T/A Legoland Discovery Centre.

This is an application by the United Workers’ 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 Sydney Aquarium Company Pty Ltd T/A Sea Life Sydney Aquarium; Melbourne Underwater World Pty Ltd T/A Sea Life Melbourne Aquarium; Underwater World Sunshine Coast Pty Ltd T/A Sea Life Sunshine Coast; The Otway Fly Pty Ltd T/A Otway Fly Treetop Adventures; and Centre Melbourne Pty Ltd T/A Legoland Discovery Centre (collectively, the Respondent).

The Respondent raised a number of concerns in relation to the form and content of the order but advised that it would not object to the protected action ballot order being made granted the Applicant would be willing to consent to amending its proposed draft order to address these concerns. In correspondence to my Chambers, the Applicant filed amended draft orders, specifically amending the name of the Respondent, the group of employees to be balloted and the form of wording for industrial action identified in questions 1 and 2 of the proposed order. While the parties were unable to reach agreement on the voting timeframe the Respondent advised my Chambers that it did not intend to press this issue.

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 Ms Hanna Bushell 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.

The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

Therefore I appoint CiVS as the protected action ballot agent.

An order has been separately issued in PR749712.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission received an application from the United Workers’ Union of Australia (Applicant) for a protected action ballot order in relation to employees of several companies, including Sydney Aquarium Company Pty Ltd T/A Sea Life Sydney Aquarium; Melbourne Underwater World Pty Ltd T/A Sea Life Melbourne Aquarium; Underwater World Sunshine Coast Pty Ltd T/A Sea Life Sunshine Coast; The Otway Fly Pty Ltd T/A Otway Fly Treetop Adventures; and Centre Melbourne Pty Ltd T/A Legoland Discovery Centre (collectively, the Respondent). The application was made under section 437 of the Fair Work Act 2009 and concerned a proposed ballot for industrial action. The Respondent raised concerns regarding the form and content of the order, but agreed not to object to the ballot if the Applicant amended its draft order. The Applicant subsequently filed amended draft orders, which were accepted by the Respondent, except for the issue of the voting timeframe, which the Respondent indicated it did not intend to pursue.

The legal issues before the court were whether the notification time for the proposed agreement had been met, and if the requirements of section 443(1) of the Fair Work Act 2009 had been satisfied. Additionally, the Applicant sought to appoint a ballot agent other than the Australian Electoral Commission (AEC) to conduct the ballot. The Respondent did not oppose this request. The court had to determine whether the proposed ballot agent, Democratic Outcomes Pty Ltd trading as CiVS (CiVS), was a fit and proper person to conduct the ballot, and whether CiVS and its Managing Director, Mr Michael M Michael, could ensure the secrecy and security of the votes and conduct the ballot expeditiously. The court also needed to confirm that CiVS agreed to comply with the Privacy Act 1998 concerning the handling of information relating to the protected action ballot.

The Fair Work Commission found that the notification time for the proposed agreement had been met and that the requirements of section 443(1) of the Fair Work Act 2009 were satisfied. The court appointed CiVS as the protected action ballot agent, as the Applicant had demonstrated that CiVS was a fit and proper person to conduct the ballot. Mr Michael, the Managing Director of CiVS, provided a statutory declaration confirming his relevant experience in conducting protected action ballots, and CiVS agreed to comply with the Privacy Act 1998. Consequently, the court issued an order appointing CiVS as the protected action ballot agent. This decision was made on the papers without a hearing, as the parties had reached an agreement on the main issues.

The court issued an order appointing CiVS as the protected action ballot agent for the United Workers’ Union of Australia’s ballot of employees of Sydney Aquarium Company Pty Ltd T/A Sea Life Sydney Aquarium; Melbourne Underwater World Pty Ltd T/A Sea Life Melbourne Aquarium; Underwater World Sunshine Coast Pty Ltd T/A Sea Life Sunshine Coast; The Otway Fly Pty Ltd T/A Otway Fly Treetop Adventures; and Centre Melbourne Pty Ltd T/A Legoland Discovery Centre. The order was made on the basis of the material submitted by the Applicant and the Respondent, and after considering the legal issues presented in the case.

United Workers’ Union v

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established