United Workers' Union v ISS Security Pty Ltd Summary

[2022] FWC 3064

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.447—Protected action

United Workers’ Union
v

ISS Security Pty Ltd

(B2022/1738)

DEPUTY PRESIDENT DEAN

CANBERRA, 18 NOVEMBER 2022

Application for a variation of a Protected Action Ballot Order in B2022/1718.

An application has been made by the United Workers’ Union (UWU) under s.447 of the Fair Work Act 2009 for variation of a protected action ballot order [PR747966] (the Order) in matter B2022/1718 on 16 November 2022. The Order was made upon application by the UWU in respect of employees of ISS Security Pty Ltd.

The application seeks to vary the Order to the effect that the date by which voting is to close from no later than 15 working days from the date the ballot commences to no later than 7 calendar days.

Both ISS Security Pty Ltd and the nominated ballot agent, Democratic Outcomes Pty Ltd (CiVS), were advised of the application and did not object to the variation sought.

Section 447 of the Act sets out the circumstances in which the Commission may vary a protected action ballot order:

447 Variation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to the FWC to vary the order.

(2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.

(3) An application may be made under subsection (1) or (2):
(a) at any time before the date by which voting in the protected action ballot closes; or
(b) if the ballot has not been held before that date and the FWC consents - after that time.

(4) If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

Having considered the material before me, I am satisfied that the requirements of s.447 of the Act have been met and it is appropriate in the circumstances for the variation to be made. Accordingly, the Order will be varied such that the date by which voting is to close is no later than 7 calendar days from the date the ballot commences. An order to that effect will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide on an application by the United Workers' Union to vary a previously issued protected action ballot order made in relation to employees of ISS Security Pty Ltd. The Union sought to reduce the timeframe within which voting was to close from 15 working days to 7 calendar days. The application was made pursuant to section 447 of the Fair Work Act 2009, which provides that the Commission may vary a protected action ballot order if an application is made by the applicant or the ballot agent. Both ISS Security Pty Ltd and the nominated ballot agent, Democratic Outcomes Pty Ltd (CiVS), were notified of the application and did not object to the variation sought.

The court was required to determine whether the application met the requirements of section 447 of the Act, and if it was appropriate in the circumstances for the variation to be made. In this case, the court considered the material before it and was satisfied that the requirements of the Act had been met. The court also found that it was appropriate in the circumstances for the variation to be made.

Accordingly, the court decided to vary the protected action ballot order such that the date by which voting was to close was no later than 7 calendar days from the date the ballot commenced. An order to that effect was issued.

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