United Workers' Union v Zoological Parks and Gardens Board T/A Zoos Victoria Summary

[2023] FWC 579

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Zoological Parks and Gardens Board T/A Zoos Victoria

(B2023/223)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 10 MARCH 2023

Proposed protected action ballot of employees of Zoological Parks and Gardens Board T/A Zoos Victoria

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 Zoological Parks and Gardens Board T/A Zoos Victoria (Respondent).

On 9 March 2023, my Associate was advised that 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 Shara Teo 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.

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 PR760173.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers’ Union sought a protected action ballot order from the Fair Work Commission for certain employees of the Zoological Parks and Gardens Board T/A Zoos Victoria. The Union argued that there was a notification time in relation to a proposed agreement and that it had been genuinely trying to reach an agreement with the employer. The employer did not oppose the application, and the Deputy President, Clancy, decided to determine the matter on the papers without holding a hearing. The Union also sought to appoint CiVS as the ballot agent for the protected action ballot instead of the Australian Electoral Commission. The employer did not oppose this request either. CiVS was deemed a fit and proper person to conduct the ballot and had agreed to be the protected action ballot agent. The Deputy President appointed CiVS as the protected action ballot agent.

The legal issues before the court were whether there was a notification time in relation to the proposed agreement and whether the Union had genuinely tried to reach an agreement with the employer. The court also had to determine whether CiVS was a fit and proper person to conduct the protected action ballot and if it was capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. The Union provided evidence in the form of a declaration from Shara Teo, who set out the steps taken by the Union in bargaining with the employer and that it had been genuinely trying to reach agreement with the employer. The Union also provided a statutory declaration from Mr Michael M Michael, the Managing Director of CiVS, setting out that he would carry out the functions of the protected action ballot agent for CiVS and that he had relevant experience in conducting protected action ballots. The employer did not object to the application or the proposed ballot agent.

The court was satisfied that there was a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Fair Work Act 2009 had been met. The court also found that CiVS was a fit and proper person to conduct the ballot and that Mr Michael and CiVS were capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. The court appointed CiVS as the protected action ballot agent.

The Fair Work Commission appointed CiVS as the protected action ballot agent for the employees of the Zoological Parks and Gardens Board T/A Zoos Victoria. The court found that the Union had been genuinely trying to reach an agreement with the employer and that there was a notification time in relation to the proposed agreement. The court also found that CiVS was a fit and proper person to conduct the ballot and that it was capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously.

United Workers' Union v Zoological Parks and Gardens Board T/A Zoos Victoria

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established