Fair Work Act 2009

Section 437 - Application for a protected action ballot order

Proposed protected action ballot of employees of Sodexo Remote Sites Australia Pty Ltd

[1] This decision concerns an application lodged on 7 July 2020 by the Australian Workers' Union (AWU or the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Sodexo Remote Sites Australia Pty Ltd (Sodexo or the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether they had any objection with the application. On 8 July 2020 Sodexo advised my Chambers that they had negotiated with the AWU to amend the order as originally sought, and they provided details of those amendments. Shortly thereafter the AWU confirmed with Chambers that they agree to the amendments.

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

[4] On the basis of the material before me, including the statutory declaration of Zachary Duncalfe of the AWU lodged on 7 July 2020, setting out the steps taken by the Applicant in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] The AWU has elected that Democratic Outcomes Pty Ltd T/A CiVS (CiVS) are to be the ballot agent other than the Australian Electoral Commission, as per section 443(4). Section 444(1)(b)(i) requires me to be satisfied that the elected alternative ballot agent "is a fit and proper person to conduct the ballot". Speaking to this, CiVS filed a Statutory Declaration of Mr Mike Michael, CiVS Managing Director, dated 19 September 2019.

[6] Based upon Mr Michael's declared education, experience, and attributes, I am satisfied that CiVS is a fit and proper person to conduct the ballot. By extension, and pursuant to section 444(1), I exercise my discretion to appoint CiVS as the alternate ballot agent.

[7] I am satisfied, in the current environment, that there are exceptional circumstances justifying the period of written notice referred to in section 414(2)(b) of the FW Act being longer than three (3) days. I note that Zachary Duncalfe has indicated the AWU has no objection to this request. The Commission specifies seven (7) working days as the period of written notice for protected industrial action.

[8] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[9] An order in conformity with the FW Act is being issued in conjunction with this decision.[1]

[1] PR720839

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