s.437 - Application for a protected action ballot order

Veolia Environmental Services (Australia) Pty Ltd

Proposed protected action ballot of employees of Veolia Environmental Services (Australia) Pty Ltd

• [1] This is an application by the Transport Workers' Union of Australia (TWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Veolia Environmental Services (Australia) Pty Ltd (Veolia or Employer).

• [2] On 4 April 2025, Veolia advised the Commission of the following issues in relation to the application:

• Veolia objected to the TWU's proposal for the ballot to close less than 10 working days from the date of the order;
• Veolia requested that the notice requirements for industrial action be extended to five working days; and
• Veolia submit that Question 5 of the proposed order be struck out, as it does not meet the definition of "industrial action" under s.19 of the Act.

• [3] I therefore set the matter down for hearing on 7 April 2025 to consider these matters. Following the hearing, I issued the Order on 7 April 2025 and now publish the reasons for my Decision.

• [4] In relation to Question 5 of the proposed order, the TWU proposed an amendment which Veolia did not object to and as such, that matter was resolved during the hearing. The parties made submissions in relation to the ballot period and the notice requirements for industrial action which I deal with in this Decision.

• [5] The TWU proposed a ballot period of five working days from the date of the order which will result in the ballot being declared on 14 April 2025. Veolia submitted that this timeframe is insufficient, particularly when considering:

• A shorter timeframe may undermine the ability of the parties to engage meaningfully in conciliation required by section 448A of the Act;
• The independent voting provider requires sufficient time to process the employee list (due on the third working day after the order is issued), establish the voting system and communicate instructions to eligible voters. If the ballot period is reduced, these steps may not be completed efficiently and could affect the integrity of the vote. A minimum 10 working day ballot period ensures that the provider has adequate time to conduct a fair and orderly ballot, maintaining compliance with procedural fairness requirements;

• • The Full Bench decision in CEPU v Nilsen (NSW) Pty Ltdi[1] confirmed the Commission's authority to extend ballot periods where necessary to allow for compliance with statutory requirements and recognised the importance of a reasonable ballot period and supported a minimum of 10 working days; and

• The TWU has not provided sufficient justification for a ballot period of less than 10 working days. There are no exceptional circumstances warranting such a reduction, and no evidence has been presented to demonstrate its necessity.

• [6] The TWU provided a declaration by Mr William Cheffirs, Industrial Officer which stated that bargaining had commenced on 26 September 2024 and that the parties had met on seven occasions. Mr Cheffirs explained that there had been two unsuccessful ballots in relation to the proposed agreement and that Veolia was about to conduct a third ballot. Mr Jordan Micallef, National ER/IR Lead for Veolia who appeared at the hearing confirmed that Veolia had commenced the access period for a vote in relation to a proposed agreement and that the vote would take place on 15 April 2025.

• [7] Mr Cheffirs submitted that the TWU is seeking for the ballot to be declared on 14 April 2025 so that in the event that the proposed agreement is not approved by employees, TWU members can take protected industrial action from 22 April 2025 which is the date immediately after the Easter Long weekend. Mr Cheffirs explained that because of the four day public holiday period, it will be necessary for the TWU to provide three working days notice on 14 April 2025 of its intention to take protected industrial action on 22 April 2025. Mr Cheffirs submitted that a longer ballot period will prejudice the bargaining position of the workforce.

• [8] Mr Cheffirs submitted that the TWU will ensure that it is available to attend a compulsory conciliation conference at a time set by the Commission and that the TWU does not believe a shorter timeframe will undermine any conciliation.

• [9] Mr Micallef informed the Commission that there are 3-5 employee bargaining representatives in addition to the TWU. Mr Cheffirs explained that the individual bargaining representatives are members of the TWU and that they have been acting as a single bargaining unit.

• [10] The ballot agent, Vero Engagement and Voting Solutions Pty Ltd (Vero Voting), has written to the Commission directly to advise that it has capacity to run a ballot with a closing date of 14 April 2025.

• [11] Section 443(3)(c) of the Act requires the Commission to specify a date in the protected action ballot order by which voting in the protected action ballot closes. For the purpose of this provision, s.443(3A) requires the Commission to specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

• [12] Matters relevant to the exercise of the discretion under s.443(3A) may include:

• • the size of the voting group,[2]
• • the capacity of the ballot agent and the capacity of the employer and bargaining representatives to provide the ballot agent with the details of employees to be balloted the views of the employer,[3]
• • the location of the group of employees, their rosters or work patterns, the nature of the work they are performing, their access to the internet or telephone services and the method by which the ballot will be conducted.[4]
• • the requirements in relation to conducting conferences pursuant to s. 448A.[5]

• [13] The TWU is seeking to take protected industrial action apparently in response to Veolia's third attempt to request employees to vote for a proposed agreement. A short ballot period is sought in circumstances where there does not appear to be any difficulty with the TWU and Veolia providing their respective lists to the ballot agent for the conduct of the ballot within the timeframe stipulated by the proposed order. The ballot agent has advised the Commission that it can comply with the timeframes in the proposed order. I am therefore satisfied that no issues in relation to the integrity of the vote arise. The TWU has provided the Commission with a commitment that it will engage meaningfully in the s.448A conference. Veolia has not pointed to any availability issues which would prevent it from attending a s.448A conference prior to 14 April 2025. I am therefore satisfied that there will be no impediments to the parties attending the s.448A conference at short notice and engaging meaningfully in conciliation.

• [14] I note that the Easter holiday period, when combined with the date that Veolia has proposed to ask employees to vote for the agreement, has created a rather unique set of circumstances which the TWU submit have necessitated a shorter ballot period than what would usually be considered appropriate by the Commission.

• [15] I have taken all of these matters into consideration and determined that for the purposes of s.443(3)(c) of the Act, the date by which voting is to close is 14 April 2025.[6] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• The current requirement to provide notification to take industrial action within three days presents operational challenges, particularly given the essential nature of its services.
• Veolia requests that this notification period be extended to ensure adequate time for workforce planning and compliance with operational requirements. Any disruption caused by industrial action could have significant public health and environmental implications.
• Veolia urges the Commission to consider these factors when determining the appropriate timeframes for the notification period and seeks a notice of period of five working days instead of three working days.

414 Notice requirements for industrial action

(1) Before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

(i) if subparagraph (ii) of this paragraph does not apply - 3 working days; or

(ii) if the proposed enterprise agreement is a multi‑enterprise agreement - 120 hours; or

(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph - that period of notice.

Note: For a proposed cooperative workplace agreement, see subsection 413(2).

Notice of employee claim action not to be given until ballot results declared

(3) A notice under subsection (1) must not be given until after the results of the protected action ballot for the employee claim action have been declared.

(4) Before a person engages in employee response action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

(5) Before an employer engages in employer response action for a proposed enterprise agreement, the employer must:

(a) give written notice of the action to each bargaining representative of an employee who will be covered by the agreement; and

(b) take all reasonable steps to notify the employees who will be covered by the agreement of the action.

(6) A notice given under this section must specify the nature of the action and the day on which it will start.

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action;

(e) the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot;

(f) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days or 120 hours (whichever is applicable), the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

• [19] Sections 414(2) and 443(5) work in conjunction with each other in relation to the requirement that before a person engages in employee claim action for a proposed enterprise agreement, an employee bargaining representative must give written notice of the action to the employer. The required notice period is three working days (if the proposed enterprise agreement is not a multi‑enterprise agreement). The required notice period may be extended up to a maximum period of seven working days provided the Commission is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice being longer than three working days.

• [20] The principles to be applied in relation to an extension of the notice period for engagement in employee claim action are set out in the Full Bench's decision in National Tertiary Education Industry Union v Charles Darwin University.[7]

• [21] In relation to the meaning of the expression 'exceptional circumstances', the Full Bench referred to a decision of the Australian Industrial Relations Commission[8] relating to the equivalent provision in the Workplace Relations Act 1996 which relevantly stated:

[10] ... In summary, the expression 'exceptional circumstances' requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe 'exceptional circumstances' as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural 'circumstances' as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of 'exceptional circumstances' includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.[9]

• [22] The Full Bench then sets out a three-step decision-making process to determine whether there should be an extension to the notice period pursuant to s 443(5) of the FW Act as follows:

(a) the Commission identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said to inform the evaluative judgement that such factors or circumstances are 'exceptional circumstances'.

(b) the Commission consider whether the circumstances are circumstances justifying a longer notice period. The identified exceptional circumstances must show or prove that it is reasonable or necessary in the circumstances to warrant a longer period of written notice.

• (c) if the Commission is satisfied there are exceptional circumstances justifying an extension, they must consider whether to exercise the discretion and, the additional notice that should be given in the circumstances.[10]

• [23] Although it provided no evidence in support of its submissions, I accept Veolia's submissions that it provides essential services, needs to ensure adequate time for workforce planning and compliance with operational requirements and that there is potential for any disruption to its services to have public health and environmental implications. When pressed during the hearing, Veolia submitted that it would need time to make other arrangements for alternative collection services for collection of waste including liquid waste, which can create an environmental hazard. Veolia was unable to satisfactorily explain why a three working day notice period would not be sufficient to make these alterative arrangements.

• [24] Further, Veolia has not provided any evidence which would enable the Commission to identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said to inform the evaluative judgement that such factors or circumstances are 'exceptional circumstances'.

• [25] I am therefore not satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days.

• [26] On the basis of the material before me, including the declaration of William Cheffirs, Industrial Officer, setting out the steps taken by the TWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Veolia, 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.

• [27] The ballot is to be conducted by Vero Voting. Vero Voting has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

• [28] An Order has been separately issued in PR785919.

• [29] This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

[1] [2023] FWCFB 134

[6] This is, in effect, 5 working days from the making of the Order and was the date sought in the application.

[7] [2018] FWCFB 4011

[8] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2007] AIRC 848.

[10] [2018] FWCFB 4011, [23]-[25].

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