United Workers' Union v Ensign Laboratories Pty Ltd Summary

[2024] FWC 2863

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Ensign Laboratories Pty Ltd

(B2024/1348)

DEPUTY PRESIDENT HAMPTON

MELBOURNE, 15 OCTOBER 2024

Proposed protected action ballot of employees of Ensign Laboratories Pty Ltd

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 Ensign Laboratories Pty Ltd (Ensign or Employer).

On 15 October 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 Sukanya Ananth, Industrial Officer, setting out the steps taken by the UWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Ensign, 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 31 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 PR780278.

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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers’ Union (UWU) lodged an application under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Ensign Laboratories Pty Ltd (Ensign). The application sought to conduct a ballot to authorise potential industrial action by the employees. The Fair Work Commission was asked to determine the matter based on the submissions and evidence provided by the UWU and Ensign, with Ensign indicating it did not object to the application.

The primary legal issue before the Deputy President was whether the UWU had satisfied the conditions set out in section 443(1) of the Act for the Commission to order a protected action ballot. This involved verifying that the union had genuinely attempted to negotiate an enterprise agreement with the employer, and that a notification period had elapsed. The Commission needed to consider the evidence provided by the UWU's Industrial Officer, Sukanya Ananth, regarding the bargaining process and efforts to reach an agreement with Ensign.

Having reviewed the material before it, the Commission was satisfied that the UWU had met the requirements for a ballot order. The evidence demonstrated that the union had been genuinely trying to reach an agreement and that the necessary notification period had passed. Consequently, the Deputy President determined that the UWU was entitled to conduct a ballot to authorise potential protected industrial action. The Commission also set the closing date for voting on the ballot as 31 October 2024.

In addition to granting the ballot order, the Commission scheduled a compulsory conciliation conference to be conducted under section 448A of the Act, requiring the attendance of all bargaining representatives and likely issuing directions to facilitate meaningful negotiations. The matter was to be assigned to another Member of the Commission to manage the conciliation process.

United Workers' Union v Ensign Laboratories Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established