United Workers' Union v Serco Australia Pty Ltd

[2025] FWC 388

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Serco Australia Pty Ltd

(B2025/225)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 11 FEBRUARY 2025

Proposed protected action ballot of employees of Serco Australia 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 Serco Australia Pty Ltd (Serco or Employer).

On 10 February 2025, the Commission was advised that the Employer, in effect, did not object to the Application as amended.

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 Surya Nagulapalli, Organiser, 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 Serco, 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 Fair Vote Services Pty Ltd (Fair Vote). Fair Vote 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 24 February 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR784209.

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, 9 working days from the making of the Order and was the specific date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers’ Union (UWU) filed an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning employees of Serco Australia Pty Ltd. The application was made to facilitate a vote on proposed protected industrial action. Serco did not object to the application, allowing the matter to proceed without a hearing. The UWU sought to conduct a ballot to authorise potential protected action, with the process to be overseen by Fair Vote Services Pty Ltd, an approved ballot agent. The Deputy President determined the ballot closing date, setting it at 24 February 2025, which also established the ballot period for the purposes of section 448A(2) of the Act.

The legal issues before the court centred on whether the UWU had met the requirements under sections 443 and 468A of the Fair Work Act to conduct a protected action ballot. Specifically, the court needed to determine if the UWU had genuinely tried to reach an agreement with Serco, and if all procedural requirements were satisfied. Additionally, the court had to approve the appointment of Fair Vote Services Pty Ltd as the ballot agent and set a closing date for the voting process. The application required scrutiny to ensure compliance with the Act's provisions concerning protected action ballots.

In rendering the decision, the Deputy President considered the material submitted by the UWU, including a declaration from Surya Nagulapalli, the Organiser, detailing the union's bargaining efforts with Serco. The court was satisfied that the union had genuinely attempted to reach an agreement and that all statutory requirements were fulfilled. Consequently, the Deputy President granted the application and authorised the protected action ballot. The ballot was to be conducted by Fair Vote Services Pty Ltd, who had been approved under section 468A of the Act. The closing date for voting was set at 24 February 2025, aligning with the specific date requested by the UWU. This matter will proceed to a compulsory conciliation conference, where the parties are expected to engage in meaningful negotiations.

The court issued an order approving the ballot process and setting the closing date for voting. Another member of the Fair Work Commission will oversee the compulsory conciliation conference, issuing necessary orders to ensure the attendance of all bargaining representatives. This decision ensures that the process for the proposed protected action ballot is legally sound and compliant with the Act, facilitating the employees' right to organise and engage in protected action if necessary.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established