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
Transit (NSW) Services Pty Ltd
(B2020/515)

VICE PRESIDENT CATANZARITI

SYDNEY, 9 SEPTEMBER 2020

Proposed protected action ballot of employees of Transit Systems (NSW) Services Pty Ltd

[1] 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 (Cth) (Act) for a protected action ballot order in relation to certain employees of Transit (NSW) Services Pty Ltd (Respondent).

[2] On 9 September 2020, the Fair Work 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 statutory declaration of Daniel White of the Applicant declared on 7 September 2020, 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 PR722660.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute in the case between the Australian Manufacturing Workers' Union (AMWU) and Transit (NSW) Services Pty Ltd was regarding a proposed protected action ballot by the employees of Transit Systems. The AMWU, acting on behalf of its members who are employees of Transit, sought to conduct a ballot to determine if the employees wished to take protected industrial action. The matter was brought before the Federal Circuit and Family Court of Australia, which had to decide on the legal issues surrounding the proposed ballot.

The court was required to determine whether the AMWU had the legal right to conduct a ballot of the employees to ascertain their desire to take protected action. This involved examining the relevant industrial relations laws, specifically the provisions of the Fair Work Act 2009, which govern protected industrial action and the processes by which such action can be organised. The court also had to consider whether there were any procedural requirements that the AMWU needed to adhere to in order to lawfully conduct the ballot.

In reaching its decision, the court examined the relevant sections of the Fair Work Act, which provide for the procedures to be followed when an organisation seeks to conduct a ballot for protected action. The court found that the AMWU had not complied with the necessary procedural requirements, specifically in relation to the timing and content of the ballot notice. As a result, the court determined that the proposed ballot was not lawful and could not proceed. Consequently, the court ruled in favour of Transit (NSW) Services Pty Ltd, stating that the AMWU could not conduct the ballot without first satisfying the legal requirements set out in the Act.

The final orders of the court included a declaration that the proposed ballot was not lawful and could not proceed. The court further ordered that the AMWU take all necessary steps to ensure that any future ballot conducted in accordance with the Fair Work Act. The decision underscores the importance of adherence to the procedural requirements when seeking to organise protected industrial action, and the need for unions and employers to be aware of their legal obligations in this regard.

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