United Workers' Union v Spotless Facility Services Pty Ltd T/A Downer

[2023] FWC 1939

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Spotless Facility Services Pty Ltd T/A Downer

(B2023/802)

DEPUTY PRESIDENT LAKE

BRISBANE, 7 AUGUST 2023

Proposed protected action ballot of employees of Spotless Facility Services Pty Ltd Trading As Downer

On 4 August 2023, the United Workers’ Union (UWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Spotless Facility Services Ltd T/A Downer (Spotless Facility). Spotless had raised contentions with the protected action ballot order.

On 7 August 2023, the Commission was advised by Spotless Facility that there were no longer contentions with the protection action ballot order subject to a few changes with the questions of the ballot. The UWU provided an amended protected ballot action order to Chambers.

In light of the above circumstances, I have decided to determine the matter on the papers.

I am satisfied with the declaration of Mr Dave Malley, UWU Trade Union Official demonstrates the steps taken by the UWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Spotless Facility, I am satisfied with the 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 Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act and consequently is authorised to conduct the ballot.^[1] For the purposes of s.443(3)(c) and s.448A(2) of the Act, a ballot period of fourteen (14) working days from the date of the Order (7 August 2023) has been set.

An Order has been separately issued in PR764911.

This matter will be assigned to me to conduct the s.448A compulsory conciliation conference and I will issue the Order requiring attendance at the conference. I will issue Directions alongside the Order to ensure that the parties attend the conference and to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the United Workers’ Union (UWU) for an order to conduct a protected action ballot among employees of Spotless Facility Services Pty Ltd T/A Downer (Spotless Facility). Spotless Facility initially contested the ballot but later withdrew its objections, subject to certain changes in the ballot questions. The UWU submitted an amended ballot order, and the matter was resolved on the papers. The Deputy President of the Commission was satisfied that the UWU had followed proper bargaining procedures and met all requirements under the Fair Work Act 2009. The ballot is to be conducted by Democratic Outcomes Pty Ltd T/A CiVS, an approved ballot agent, with a ballot period of fourteen working days from the date of the order.

The key legal issues before the Commission were whether the UWU had properly notified Spotless Facility of the proposed protected action and whether the UWU had genuinely attempted to reach an agreement with the employer. The Deputy President considered the declaration by a UWU Trade Union Official, Mr Dave Malley, which outlined the bargaining steps taken and the UWU's efforts to reach an agreement with Spotless Facility. The Deputy President found that the UWU had met all statutory requirements, including proper notification and genuine bargaining efforts, and granted the order for the ballot to proceed. Additionally, the Deputy President set a ballot period of fourteen working days and assigned the matter for a compulsory conciliation conference to ensure meaningful negotiations between the parties.

In light of Spotless Facility's withdrawal of objections and the UWU's compliance with the statutory requirements, the Deputy President granted the UWU's application for a protected action ballot order. The order permits the UWU to conduct the ballot through Democratic Outcomes Pty Ltd T/A CiVS, with a ballot period of fourteen working days starting from 7 August 2023. The Commission will also oversee a compulsory conciliation conference to encourage continued negotiations between the UWU and Spotless Facility. This decision ensures that the employees have the opportunity to participate in a protected action ballot, while also promoting further dialogue between the union and the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established