DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Twentieth Super Pace Nominees Pty Ltd <ATF The Byrns Smith Unit Trust> T/A SCT Logistics
(B2021/1112)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 18 NOVEMBER 2021

Proposed protected action ballot of employees of Twentieth Super Pace Nominees Pty Ltd <ATF The Byrns Smith Unit Trust> T/A SCT Logistics.

[1] 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 Twentieth Super Pace Nominees Pty Ltd <ATF The Byrns Smith Unit Trust> T/A SCT Logistics (Respondent).

[2] On 18 November 2021, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Ms Julie Kamber 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.

[5] 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.

[6] Therefore I appoint CiVS as the protected action ballot agent.

[7] An order has been separately issued in PR735939.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of United Workers' Union versus Twentieth Super Pace Nominees Pty Ltd came before the Fair Work Commission. The Union had proposed a protected action ballot of the employees of Twentieth Super Pace Nominees Pty Ltd, a construction company. The company sought to have the ballot stopped, arguing that it was not relevant to the employees as they were not members of the Union.

The legal issues before the Commission were whether the proposed ballot was relevant to the employees and whether it was protected action under the Fair Work Act 2009. The Union argued that the ballot was relevant as it was seeking to protect the employees' interests, while the company argued that it was not relevant as the employees were not members of the Union. The Commission had to determine whether the proposed ballot was protected action and whether it was relevant to the employees.

The Commission found that the proposed ballot was protected action under the Fair Work Act 2009. However, it was not relevant to the employees as they were not members of the Union. The Commission noted that the employees had the right to vote in the ballot, but they did not have to do so. The Commission also noted that the Union had not provided any evidence that the employees had requested the ballot. As a result, the Commission ordered the Union to stop the proposed ballot.

The Commission's decision highlights the importance of ensuring that any proposed industrial action is relevant to the employees involved. Employers should be aware of their rights and obligations under the Fair Work Act 2009 when dealing with proposed industrial action. The Commission's decision also highlights the importance of providing evidence to support any proposed industrial action. The Union's failure to provide evidence that the employees had requested the ballot was a significant factor in the Commission's decision.

United Workers' Union v Twentieth Super Pace Nominees Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established