United Workers' Union v ISS Security Pty Ltd Summary

[2024] FWC 1825

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

(B2024/875)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 11 JULY 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 July 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 Nicholas Richardson, 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 it, 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 30 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 set out in the Order made by the Commission. The extended notice period of 5 working days applies to the items listed within Clause 5 of the Order.

An Order has been separately issued in PR776928.

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 14 calendar days from the anticipated commencement of the ballot. The application sought that the ballot close no later than 14 days from the commencement date.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union (UWU) made an application to the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of ISS Security Pty Ltd (ISS). The application was brought to facilitate a ballot regarding proposed industrial action. ISS did not object to the application, leading to the decision being made on the submitted documents without a hearing. The FWC was required to determine whether the UWU had met the statutory requirements for holding a ballot and whether exceptional circumstances justified an extension of the notice period for the proposed industrial action.

The legal issues before the FWC included verifying whether the UWU had genuinely attempted to reach an agreement with ISS and whether all requirements under sections 443 and 443(5) of the Act had been satisfied. The FWC had to ascertain whether the UWU had set out sufficient evidence of its bargaining efforts and if there were exceptional circumstances warranting an extension of the notice period for the industrial action. Additionally, the FWC needed to confirm that the ballot agent, TrueVote Pty Ltd, was appropriately approved and authorised to conduct the ballot.

In its decision, the FWC found that the UWU had genuinely attempted to reach an agreement with ISS and had met all the requirements under section 443(1) of the Act. The FWC was satisfied with the steps taken by the UWU and the declaration of Nicholas Richardson, a Trade Union Official, detailing these efforts. The Commission determined that the ballot would close on 30 July 2024, establishing the ballot period under section 448A(2) of the Act. The FWC also found that there were exceptional circumstances justifying an extended notice period of five working days for the industrial action as specified in Clause 5 of the Order. The FWC assigned this matter to another Member for a compulsory conciliation conference and directed that all bargaining representatives attend.

The FWC issued an order granting the UWU's application for a protected action ballot order, with the ballot closing on 30 July 2024. The order also included provisions for an extended notice period of five working days for the industrial action, applicable to the items listed in Clause 5. This matter was further directed to another Member of the Commission for a compulsory conciliation conference to ensure meaningful negotiations.

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