“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Kelsian Group Limited T/A Torrens Transit Services Pty Ltd

[2023] FWC 352

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v

Kelsian Group Limited T/A Torrens Transit Services Pty Ltd

(B2023/100)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 13 FEBRUARY 2023

Proposed protected action ballot of employees of Kelsian Group Limited T/A Torrens Transit Services Pty Ltd.

This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Kelsian Group Limited T/A Torrens Transit Services Pty Ltd (Respondent).

On 10 February 2023, the Respondent advised my Chambers that it sought clarification from the Applicant in relation to the industrial action specified in proposed actions 7 and 9 of the draft order accompanying the application. The Respondent also raised safety concerns in relation to the industrial action specified action identified in proposed actions 6 and 8. I caused correspondence to be sent to the Applicant requesting it provide clarification in relation to proposed actions 7 and 9 and inviting comments in respect of the Respondent’s concerns relating to proposed actions 6 and 8. The Applicant’s correspondence in reply resulted in me determining to hold a Mention. I conducted the Mention on 13 February 2023, during which I discussed the above matters with the parties and some others subsequently raised.

The Applicant subsequently proposed an amended form of wording for proposed questions 7 and 9 in response and as I had foreshadowed at the Mention, I have proceeded to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Mr Mark Plunkett 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.

An order has been separately issued in PR750489.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, also known as the Australian Manufacturing Workers' Union (AMWU), applied to the Fair Work Commission for an order under section 437 of the Fair Work Act 2009 to conduct a ballot for protected industrial action against Kelsian Group Limited T/A Torrens Transit Services Pty Ltd. The dispute centred on the Respondent's request for clarification on the industrial action specified in proposed actions 7 and 9 of the draft order accompanying the application, and the Respondent's safety concerns relating to proposed actions 6 and 8. The application was made on 10 February 2023, and a Mention was conducted on 13 February 2023, where the matter was discussed between the parties.

The primary legal issue the court had to decide was whether the AMWU had met the requirements for a protected action ballot under section 437 of the Fair Work Act 2009. This involved examining the AMWU's declaration of Mr Mark Plunkett, which set out the steps taken by the union in bargaining with the Respondent and its efforts to reach an agreement. The court also had to consider the Respondent's safety concerns regarding the proposed industrial action. Based on the material presented, the court determined that the requirements in section 443(1) of the Act had been met and that there was a notification time in relation to the proposed agreement.

After reviewing the evidence and taking into account the parties' submissions, the court decided to proceed with the matter on the papers without holding a hearing. The Deputy President of the Fair Work Commission was satisfied that the AMWU had met the necessary criteria for a protected action ballot, and an order was issued in PR750489. The specific details of the order and the resolution of the safety concerns raised by the Respondent are not mentioned in the text.

No further orders were mentioned in the text, and it is unclear what the specific terms of the order were. However, the court's decision indicates that the AMWU's application for a protected action ballot was successful, and the Respondent's concerns were considered in the determination.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established