United Workers' Union v ISS Security Pty Ltd T/A ISS Security Summary

[2024] FWC 3089

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 T/A ISS Security

(B2024/1442)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 8 NOVEMBER 2024

Proposed protected action ballot of employees of ISS Security Pty Ltd T/A ISS Security

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 T/A ISS Security (ISS or Employer).

On 7 November 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 Ashley Wilton, 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 26 November 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 set out in the Order made by the Commission. The extended notice period of 5 working days applies to the items listed within paragraph 5 of the Order.

The structure of the draft order has been amended to reflect the Fair Work Commission’s standard template.

An Order has been separately issued in PR781054.

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, 10 working days from the anticipated commencement of the ballot and was the period 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 certain employees of ISS Security Pty Ltd T/A ISS Security. The UWU aimed to organise a ballot for potential industrial action due to ongoing disputes in bargaining for a new enterprise agreement. ISS Security Pty Ltd, the employer, did not object to the application, facilitating the Commission's decision to proceed without a hearing.

The central legal issue before the Commission was whether the UWU had satisfied the statutory requirements for initiating a protected action ballot. This included verifying if the UWU had genuinely attempted to negotiate in good faith with ISS Security and if the proposed industrial action aligned with the Act's provisions. Additionally, the Commission needed to determine the appropriate duration for the notice period and the ballot period, considering any exceptional circumstances that might justify an extension.

The Deputy President concluded that the UWU had met all the necessary criteria set forth in section 443(1) of the Act, including demonstrating a genuine attempt to reach an agreement. The Commission also accepted that exceptional circumstances existed, warranting an extension of the notice period for the industrial action to five working days, as specified in the draft order. This decision was made in accordance with the UWU's application and the provisions of the Act. The Commission ordered that the ballot be conducted by TrueVote Pty Ltd, an approved ballot agent, and set the closing date for voting as 26 November 2024.

The Fair Work Commission issued an order permitting the ballot to proceed, with specific directives for the notice period and the ballot timeline. The matter was assigned to another Commission member to oversee the compulsory conciliation conference under section 448A, aiming to facilitate meaningful negotiations between the bargaining representatives.

United Workers' Union v ISS Security Pty Ltd T/A ISS Security

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established