United Workers' Union v Ensign Services (Australia) Pty Ltd T/A Linen Services Australia Summary

[2024] FWC 3458

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Ensign Services (Australia) Pty Ltd T/A Linen Services Australia

(B2024/1628)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 12 DECEMBER 2024

Proposed protected action ballot of employees of Ensign Services (Australia) Pty Ltd T/A Linen Services Australia

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 Services (Australia) Pty Ltd T/A Linen Services Australia (Ensign Services or Employer).

On 11 December 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 Services, 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 Fair Vote Services Pty Ltd (Fair Vote). Fair Vote 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 10 January 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR782341.

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, 18 working days from the making of the Order and was the date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the United Workers' Union (UWU) under section 437 of the Fair Work Act 2009, seeking a protected action ballot order concerning employees of Ensign Services (Australia) Pty Ltd T/A Linen Services Australia. Ensign Services did not object to the application, allowing the Deputy President to proceed with the decision based on the submitted documents. The application aimed to organise a ballot for potential protected actions by the employees, facilitated by Fair Vote Services Pty Ltd, which is authorised under the Act to conduct such ballots.

The legal issues before the Court revolved around whether the UWU had genuinely attempted to reach an agreement with Ensign Services and if all requirements stipulated in section 443(1) of the Act were met. The Court had to verify that the notification period for the proposed agreement was correctly observed and that all procedural prerequisites were fulfilled. Additionally, the Court needed to set a closing date for the ballot, ensuring compliance with section 443(3)(c) of the Act.

The Deputy President found that the UWU had indeed been genuinely attempting to reach an agreement and that all conditions under section 443(1) of the Act were satisfied. The declaration by Sukanya Ananth, Industrial Officer, outlined the union's efforts in bargaining with the employer, supporting the conclusion that the union had taken appropriate steps. Consequently, the Court determined that the voting period for the ballot would conclude on 10 January 2025, aligning with the requirements of section 448A(2) of the Act. This date effectively constituted 18 working days from the issuance of the order, meeting the union's request.

The final orders included the approval of the ballot process and the setting of the closing date for voting. Furthermore, the matter was assigned to another member of the Commission for a compulsory conciliation conference, ensuring that all bargaining representatives would attend and engage in meaningful negotiations. Directions were anticipated to facilitate the attendance and preparedness of the parties for the conference.

United Workers' Union v Ensign Services (Australia) Pty Ltd T/A Linen Services Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established