United Workers' Union v MSS Security Pty Limited Summary

[2023] FWC 2728

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

MSS Security Pty Limited

(B2023/1117)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 19 OCTOBER 2023

Proposed protected action ballot of employees of MSS Security Pty Limited

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 MSS Security Pty Limited (MSS or Employer).

On 19 August 2023, the Commission was advised that MSS, 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 on behalf of the UWU, 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 MSS, 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 the Australian Electoral Commission. 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 November 2023.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR767398.

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 involved 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, 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission received an application from the United Workers' Union for a protected action ballot order concerning certain employees of MSS Security Pty Limited. This request was made under section 437 of the Fair Work Act 2009. The Union sought to conduct a ballot among employees to determine if they supported taking protected industrial action due to the ongoing negotiations with the employer. MSS Security Pty Limited did not object to the application, allowing the Deputy President to proceed with a decision based on the documentation submitted.

The legal issues before the Court were whether the Union had met the statutory requirements to seek a ballot for protected action and if the employer's silence constituted an implicit acceptance of the ballot. The Deputy President assessed whether the Union had genuinely attempted to reach an agreement with MSS Security Pty Limited and whether all procedural requirements of the Act were fulfilled. The Union provided a declaration from Ashley Wilton, confirming the steps taken in bargaining and their ongoing efforts to reach an agreement. The Deputy President determined that the Union had satisfied the notification time and statutory requirements, thereby allowing the ballot to proceed.

The Deputy President concluded that the Union had indeed fulfilled the necessary criteria to conduct the ballot, as evidenced by the declaration from Ashley Wilton, which detailed the Union's efforts in bargaining with MSS Security Pty Limited. Given MSS Security Pty Limited's lack of objection to the application, the Court determined that the employer's silence amounted to an implicit acceptance of the ballot. The Court set the closing date for voting as 30 November 2023, which aligns with the period required by the Australian Electoral Commission to conduct the ballot. This decision will be followed by a compulsory conciliation conference to ensure meaningful negotiations between the parties.

The Court issued an order for the ballot to be conducted by the Australian Electoral Commission, closing on 30 November 2023. Additionally, a separate order was issued in PR767398 to assign another Member of the Commission to conduct the compulsory conciliation conference. This member will issue an order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference, with directions likely to be issued to ensure the parties are prepared for meaningful negotiations.

United Workers' Union v MSS Security Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established