United Workers' Union v Qenos Pty Ltd

[2022] FWC 2308

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Qenos Pty Ltd

(B2022/1300)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 1 SEPTEMBER 2022

Proposed protected action ballot of employees of Qenos Pty Ltd.

This is an application by the United Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Qenos Pty Ltd (Respondent).

On 31 August 2022, my Associate was advised that the parties reached consent to an extension of the notice period for the action outlined in questions 1 and 2 and, accordingly, the Respondent 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 Ms Belinda Jacobi 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. I am also satisfied based on the position of the parties and the material before me that the period of written notice referred to in s.414(2)(a) of the Act should be longer than 3 working days for the action outlined in questions 1 and 2 and that I should exercise the discretionary power in s.443(5) of the Act and specify a period of at least 5 working days in relation to them.

The Applicant also sought that a person other than the Australian Electoral Commission (AEC) 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 trading as CiVS (CiVS). Mr Michael M Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are 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 Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

Therefore I appoint CiVS as the protected action ballot agent.

An order has been separately issued in PR745332.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union has applied to the Fair Work Commission for a protected action ballot order for certain employees of Qenos Pty Ltd. The application was made under section 437 of the Fair Work Act 2009. The Union sought to extend the notice period for the proposed industrial action and to appoint a ballot agent other than the Australian Electoral Commission. The Commission was satisfied that the Union had genuinely tried to reach an agreement with Qenos Pty Ltd and that the requirements of section 443(1) of the Act had been met. The Commission also found that the notice period should be longer than three working days and exercised its discretion under section 443(5) of the Act to specify a period of at least five working days. The Commission appointed Democratic Outcomes Pty Ltd trading as CiVS as the ballot agent, having been satisfied that it was a fit and proper person to conduct the ballot and that it could ensure the secrecy and security of the votes and conduct the ballot expeditiously.

The legal issues before the Commission were whether the Union had satisfied the requirements for a protected action ballot and whether the proposed ballot agent was suitable. The Union had to demonstrate that it had genuinely tried to reach an agreement with the employer and that the notice period was appropriate. The Commission had to consider the evidence before it and exercise its discretion in determining the notice period and appointing the ballot agent. The Commission found that the Union had satisfied the requirements for a protected action ballot and that the proposed ballot agent was suitable.

The Commission determined the matter on the papers without holding a hearing, as the parties had reached consent to an extension of the notice period. The Commission was satisfied that the Union had taken steps to bargain with the employer and that it had been genuinely trying to reach an agreement. The Commission also found that the proposed ballot agent was a fit and proper person to conduct the ballot and that it could ensure the secrecy and security of the votes and conduct the ballot expeditiously.

The Commission appointed CiVS as the protected action ballot agent and issued a separate order in PR745332. The Commission found that the Union had satisfied the requirements for a protected action ballot and that the proposed ballot agent was suitable. The Commission exercised its discretion to specify a notice period of at least five working days and appointed CiVS as the ballot agent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established