United Workers' Union v Animal Welfare League of South Australia Inc

[2022] FWC 920

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Animal Welfare League of South Australia Inc

(B2022/341)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 21 APRIL 2022

Proposed protected action ballot of employees of Animal Welfare League of South Australia Inc.

This is an application by the United Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Animal Welfare League of South Australia Inc (the Respondent).

On 21 April 2022, my Associate was advised that the Respondent objected to the application. In the circumstances, I held a mention where the Respondent advised it withdrew its objection 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 Kelley Edwards 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 PR740549.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union made an application under the Fair Work Act 2009 to the Fair Work Commission for a protected action ballot order in relation to certain employees of Animal Welfare League of South Australia Inc. The Union sought a ballot to be held to ascertain the employees' support for proposed protected action. The dispute arose from negotiations for a new enterprise agreement. The Union argued that the agreement had been negotiated in good faith and that the requirements of the Act had been met, including the notification period.

The legal issues that the Commission had to decide included whether the Union had genuinely attempted to reach an agreement with the employer, whether the notification period had been met, and whether the proposed ballot agent was suitable to conduct the ballot. The Union had provided evidence of its good faith negotiations and the employer had withdrawn its objection to the application, which indicated that the requirements of the Act had been met. The proposed ballot agent, Democratic Outcomes Pty Ltd trading as CiVS, had provided evidence of its suitability to conduct the ballot and had agreed to comply with the Privacy Act 1998.

The Commission was satisfied that the Union had genuinely attempted to reach an agreement with the employer and that the notification period had been met. The Commission was also satisfied that CiVS was a fit and proper person to conduct the ballot and that it was capable of ensuring the secrecy and security of the votes. The Commission appointed CiVS as the protected action ballot agent and made the necessary orders.

The Fair Work Commission ordered that a protected action ballot be held and that CiVS be the ballot agent. The Commission also ordered that the ballot be conducted in accordance with the Privacy Act 1998 and that the secrecy and security of the votes be maintained. The decision provides guidance on the requirements for a protected action ballot and the suitability of a ballot agent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established