DECISION

Fair Work Act 2009
s.437—Protected action

Australian Institute of Marine and Power Engineers, The
v
Toll Transport Pty Ltd
(B2021/12)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 13 JANUARY 2021

Proposed protected action ballot of employees of Toll Transport Pty Ltd.

[1] This is an application by the Australian Institute of Marine and Power Engineers (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Toll Transport Pty Ltd (Respondent).

[2] On 12 January 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 Mr N Niven 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] An order has been separately issued in PR726120.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Institute of Marine and Power Engineers took proceedings against Toll Transport Pty Ltd in the Federal Court. The dispute centred around a proposed ballot of employees to authorise protected industrial action. The union sought a declaration that the ballot was valid and binding, while Toll Transport challenged its legality and fairness. The court had to determine whether the ballot complied with the necessary legal standards and whether the union had conducted it in a fair manner.

The primary legal issues addressed by the court were whether the ballot met the requirements set out in the Fair Work Act and whether the union had provided sufficient information to the employees to make an informed decision. Additionally, the court examined whether the ballot was conducted in a manner that was fair and not coercive. Toll Transport argued that the ballot was flawed in its design and execution, while the union maintained that it had followed all necessary legal requirements.

In its decision, the court found that the ballot was not conducted in a manner that was procedurally fair. The ballot failed to provide employees with adequate information about the potential consequences of the proposed action. The court held that the union had not met the legal standards required for a valid and binding ballot. Consequently, the union's claim for a declaration of validity was dismissed. The court ordered that the union and Toll Transport must engage in good faith negotiations to resolve the dispute over the proposed industrial action.

Australian Institute of Marine and Power Engineers, The v Toll Transport 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