United Workers' Union v Sydney Night Patrol & Inquiry Co Pty Ltd T/A Certis Security Australia

[2024] FWC 78

[2024] FWC 78

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Sydney Night Patrol & Inquiry Co Pty Ltd T/A Certis Security Australia

(B2024/12)

DEPUTY PRESIDENT ROBERTS SYDNEY, 11 JANUARY 2024

Proposed protected action ballot of employees of Sydney Night Patrol & Inquiry Co Pty Ltd Trading As Certis Security Australia

1. This is an application by 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 Sydney Night Patrol & Inquiry Pty Ltd (Employer).

1. The application was initially contested by the Employer and the matter was listed for hearing on 11 January 2024. Prior to the hearing, the parties advised the Commission that they had reached agreement in relation to the protected action ballot order. The matter proceeded by consent and on the basis of the material filed.

1. On the basis of the material before me, including the declaration of Mr. Damien Davie an official of the UWU setting out the steps taken by the Applicant in bargaining with the Employer and confirming that the UWU has been, and is, genuinely trying to reach agreement with them, 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.

1. Having regard to the material before me and noting the agreement reached between the parties, I am satisfied that there are exceptional circumstances justifying the period of written notice being longer than 3 working days for the industrial action referred to in the accompanying Order. Pursuant to s.443(5) of the Act, the period of written notice for the purposes of s.414(2)(b) of the Act is 5 working days for the industrial action specified.

1. 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[1] and consequently is authorised to conduct the ballot.

1. The application and draft order proposed that the ballot was to close no later than 14 days from the commencement date, which commencement date was to be determined by CiVS. 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 8 February 2024[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act. The proposed draft order has been modified accordingly and the Order issued with this decision will reflect this date as being the date on which the ballot closes.

1. An Order has been separately issued in PR770147.

1. This matter will shortly be listed for a s.448A compulsory conciliation conference. An Order will be issued requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

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

[2] This date was determined after the parties were provided with an opportunity to be heard on an appropriate date by which the voting in the ballot is to close.

Printed by authority of the Commonwealth Government Printer

<PR770143>