United Workers' Union v ISS Security Pty Ltd Summary

[2024] FWC 1519

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

ISS Security Pty Ltd

(B2024/743)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 12 JUNE 2024

Proposed protected action ballot of employees of ISS Security 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 ISS Security Pty Ltd (ISS or Employer).

On 11 June 2024, the Commission was advised that the Employer did not object to the Application, subject to reaching some common ground with the UWU about the extent of notice to be given for the taking of the proposed protected industrial action. This was subsequently agreed between the parties.

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 Carl Ratana, Trade Union Official, 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 ISS, 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 TrueVote Pty Ltd (TrueVote). TrueVote 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 1 July 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action as set out in the Order made by the Commission. The extended notice period of 5 working days applies to the items listed within Clause five (5) of the Order.

An Order has been separately issued in PR775885.

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 for 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, fourteen (14) calendar days from the commencement date of the ballot, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide whether the United Workers' Union could hold a protected action ballot for its members who work for ISS Security Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, and ISS Security Pty Ltd did not oppose the application, provided they could agree on the notice period for the proposed industrial action. The Commission determined that the Union had genuinely attempted to reach an agreement with ISS and that all requirements under section 443(1) of the Act were met. The ballot would be conducted by TrueVote, which has been approved as an eligible agent.

The central legal issue was whether the Union had fulfilled the necessary conditions to hold a ballot under the Fair Work Act, including demonstrating that it had genuinely attempted to reach an agreement with the employer and that all procedural requirements had been met. Additionally, the Commission had to determine if there were exceptional circumstances warranting an extended notice period for the industrial action, as outlined in section 443(5) of the Act. The Commission found that the Union had indeed met all conditions and that exceptional circumstances did exist, justifying an extended notice period.

In deciding the application, the Commission considered the declaration of Carl Ratana, a Trade Union Official, who attested to the Union's efforts in bargaining with ISS and its commitment to reaching an agreement. The Commission was satisfied that the Union had met all the requirements and that the extended notice period of five working days was justified. The Commission also determined that the voting for the ballot would close on 1 July 2024 and assigned another Commission member to conduct a compulsory conciliation conference.

The Commission issued an order permitting the Union to hold the ballot, setting the closing date for voting, and confirming the extended notice period. The matter was also referred to another member for compulsory conciliation, with directions to be issued to ensure meaningful negotiations between the parties.

United Workers' Union v ISS Security Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established