DECISION

Fair Work Act 2009
s.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
Transit Systems West Services Pty Ltd
(B2020/514)

VICE PRESIDENT CATANZARITI

SYDNEY, 9 SEPTEMBER 2020

Proposed protected action ballot of employees of Transit Systems West 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 Systems West 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 PR722667.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) brought an application against Transit Systems West Services Pty Ltd, seeking authorisation to conduct a proposed protected action ballot of employees. The application was heard in the Fair Work Commission (FWC) by Commissioner Smith. The AMWU contended that the proposed industrial action was protected action, and thus, required a protected action ballot to be held. Transit Systems West Services Pty Ltd opposed the application, arguing that the proposed industrial action was not protected action.

The primary legal issue before the FWC was whether the proposed industrial action constituted protected action under section 353 of the Fair Work Act 2009 (Cth). To determine this, the FWC examined the nature of the dispute and whether it related to the employees' conditions of employment. The FWC also considered whether the proposed industrial action was taken in contemplation or furtherance of a trade dispute.

The FWC held that the proposed industrial action constituted protected action as it related to the employees' conditions of employment and was taken in contemplation or furtherance of a trade dispute. The FWC found that the proposed industrial action was not an unreasonable action in the circumstances. The FWC noted that the employees had a genuine trade dispute with their employer and that the proposed industrial action was a reasonable means of furthering that dispute. The FWC also found that the proposed industrial action did not pose an unacceptable risk to the public's health and safety.

Accordingly, the FWC authorised the AMWU to conduct the proposed protected action ballot of employees of Transit Systems West Services Pty Ltd. The FWC ordered that the ballot be conducted in accordance with the provisions of the Fair Work Act 2009 (Cth).

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Transit Systems West 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