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

[2022] FWC 3042

[2022] FWC 3042

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union

v

MSS Security Pty Ltd T/A MSS Security

(B2022/1715)

DEPUTY PRESIDENT YOUNG MELBOURNE, 16 NOVEMBER 2022

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

1. This is an application by the United Workers’ Union (UWU/Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of MSS Security Pty Ltd T/A MSS Security (Respondent) who are to be covered by the proposed agreement and are represented by the Applicant.

1. On 15 November 2022, the Fair Work Commission (Commission) was advised that the Respondent objected to the application, specifically on the basis that the Applicant had not been genuinely trying to reach agreement with the Respondent.

1. The matter was listed for mention/directions hearing before me at 3.00pm on 15 November 2022 following which directions were issued to parties for the filing of materials and the matter was listed for hearing at 1.00pm on 16 November 2022.

1. At 11.18pm on 15 November 2022 the Respondent sent an email to the Commission, copying in the Applicant, stating that ‘we would like to withdraw our objection to UWU’s application for the protected ballot action.’

1. In these circumstances, I have decided to determine the matter on the papers without

holding a hearing.

1. On the basis of the material before me, including the declaration of Mr Nicolas Richardson of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

1. The Applicant sought that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd T/A CiVS (CiVS). Based on the Statutory Declaration provided by Mr Michael M Michael I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that CiVS is capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVS has agreed to be the protected action ballot agent and is bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

1. Therefore, I appoint CiVS as the protected action ballot agent.

1. An order has been separately issued in PR747971.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR747979>