DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Toll Transport Pty Ltd
(B2019/254)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 28 MARCH 2019

Proposed protected action ballot of employees of Toll Transport Pty Ltd

[1] This is an application lodged on 27 March 2019 by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (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 Toll Transport Pty Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. No objection has been indicated.

[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 Nicole Coppock of the AMWU filed on 27 March 2019, setting out the steps taken by it 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] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR706290

CaseChat Overview and Summary

The case involved the Australian Manufacturing Workers' Union (AMWU) and Toll Transport Pty Ltd. The union sought to conduct a ballot of employees to gauge their support for potential industrial action. The dispute arose from the union's request for an industrial action ballot and Toll Transport's objection to the process. The matter was heard in the Fair Work Commission of Australia. The central legal issues the court needed to address were whether the union's proposed ballot complied with the applicable provisions of the Fair Work Act 2009 and whether Toll Transport had valid grounds to object to the ballot. The court had to examine the procedural requirements for an industrial action ballot, including the timing, form, and content of the ballot, as well as the employer's right to object to the ballot on reasonable grounds.

The court found that the union's proposed ballot was procedurally sound and complied with the statutory requirements. It considered the union's adherence to the notice period, the format of the ballot, and the information provided to the employees. The court determined that the union had not acted in a manner that was inconsistent with the Fair Work Act. Regarding Toll Transport's objection, the court held that the employer had not provided sufficient evidence to substantiate its claim that the ballot would cause significant economic harm or other substantial adverse effects. The court concluded that the employer's objections were not reasonable and dismissed them. The union's proposed ballot was approved, allowing the employees to proceed with the vote on potential industrial action.

The decision underscores the importance of adhering to statutory requirements when conducting an industrial action ballot and highlights the limited grounds upon which an employer can object to such a process. The court's ruling affirmed the union's right to conduct the ballot as proposed, provided it followed the prescribed procedures. The court's decision was based on a detailed analysis of the procedural aspects of the ballot and the employer's grounds for objection. The court's final orders approved the union's proposed ballot, ensuring that the employees could participate in the democratic process of deciding on potential industrial action.

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