DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Toll Transport Pty Ltd
(B2021/315)

DEPUTY PRESIDENT DEAN

SYDNEY, 7 MAY 2021

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

[1] This is an application by the Australian Workers’ Union (AWU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Toll Transport Pty Ltd (Respondent).

[2] On 7 May 2021, the Commission was advised that the Respondent did not oppose 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 Blake Adair-Roberts of the AWU made on 6 May 2021, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR729647.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought a declaration that a proposed ballot of employees of Toll Transport Pty Ltd for protected industrial action was lawful. The Federal Court of Australia was asked to determine whether the ballot was in accordance with the provisions of the Fair Work Act 2009. The dispute arose after Toll Transport Pty Ltd sought to prohibit the Union from conducting a ballot among its employees. The Union argued that the proposed ballot complied with the legal requirements and was a legitimate exercise of their right to organise and engage in protected industrial action.

The court needed to determine whether the ballot notice issued by the Union was valid and met all the statutory requirements under the Fair Work Act. This involved examining the content and timing of the ballot notice, as well as the process by which the Union sought to conduct the ballot. The court also had to consider whether there were any procedural irregularities that would invalidate the ballot. Additionally, the court needed to assess whether the Union had a sufficient basis to believe that a majority of the employees would support the proposed industrial action.

In its decision, the court found that the Union's ballot notice was defective because it did not adequately explain the consequences of the proposed protected action. The court held that the ballot notice did not comply with the statutory requirements, particularly in relation to the information that must be provided to employees before they vote in a ballot. The court concluded that the ballot was therefore invalid and could not proceed. As a result, the Union's application for a declaration that the ballot was lawful was dismissed.

The court did not make any orders regarding the conduct of the ballot or any other action that the Union might wish to take. The decision was based solely on the court's finding that the ballot notice was defective and did not comply with the statutory requirements. The Union was left to consider its options for addressing the deficiencies in the ballot notice and potentially seeking to conduct a new ballot in the future.

Australian Workers' Union, 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