United Workers' Union v ISS Security Pty Ltd Summary

[2022] FWC 3063

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.447—Protected action

United Workers’ Union
v

ISS Security Pty Ltd

(B2022/1737)

DEPUTY PRESIDENT DEAN

CANBERRA, 18 NOVEMBER 2022

Application for a variation of a Protected Action Ballot Order in B2022/1716.

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 [PR747964] (the Order) in matter B2022/1716 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 United Workers’ Union sought to vary a protected action ballot order in relation to employees of ISS Security Pty Ltd. The order was initially made in matter B2022/1716. The Union sought to vary the order to reduce the closing date for voting in the ballot from 15 working days to 7 calendar days. ISS Security Pty Ltd and the ballot agent, Democratic Outcomes Pty Ltd, did not object to the variation sought. The Union's application was made under section 447 of the Fair Work Act 2009. The legal issue before the Fair Work Commission was whether the requirements of the Act had been met for the variation to be made.

The Deputy President concluded that the requirements of section 447 had been met and it was appropriate for the variation to be made. The Deputy President noted that the ballot had not yet been held and that both parties had consented to the application being made after the initial closing date. The Deputy President determined the matter on the papers without holding a hearing, as the material before the Commission was sufficient to make a decision. The Deputy President varied the order to reduce the closing date for voting in the ballot to 7 calendar days from the date the ballot commences.

The Fair Work Commission varied the protected action ballot order 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. The Deputy President concluded that the variation was appropriate in the circumstances and that the requirements of section 447 of the Act had been met.

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