DECISION

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

National Union of Workers
v
Toll Transport Pty Ltd T/A Toll Customised Solutions
(B2016/483)

COMMISSIONER ROE

MELBOURNE, 27 APRIL 2016

Proposed protected action ballot of employees of Toll Transport Pty Ltd t/as Toll Customised Solutions.

[1] This is an application for a protected action ballot order by members of the National Union of Workers (NUW) employed by Toll Transport Pty Ltd t/as Toll Customised Solutions (the employer). The application is made pursuant to Section 437 of the Fair Work Act 2009 (the Act).

[2] The applicant seeks to ballot employees of the employer who are members of the NUW and who would be covered by the proposed enterprise agreement.

[3] In considering this matter I must apply Section 443 of the Act which provides:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[4] To begin, I am satisfied that the Application has been made in accordance with Section 437 of the Act. I am satisfied that the Application was not made earlier than 30 days prior to the nominal expiry date of the current agreement, Toll Customised Solutions (Kraft) and National Union of Workers Enterprise Agreement 2013, as required by Section 438 of the Act. I am satisfied that the employer received the Application as required by Section 440 of the Act. I received advice from Mr Matthew Smith, that the employer did not oppose the application. I therefore decided to deal with the Application on the papers.

[5] The next matter to which attention must be given is whether or not the applicant has been, and is, genuinely trying to reach an agreement with the employer on behalf of the employees who are to be balloted. The NUW provided submissions in their application that satisfies me this is the case.

[6] I am satisfied that the proposed order meets the requirements of Section 443 of the Act. The questions adequately specify the nature of the proposed industrial action and meet the requirements of Section 443(3)(d). The draft order therefore adequately describes the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.

[7] Having decided that Section 443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the NUW.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved the National Union of Workers and Toll Transport Pty Ltd, trading as Toll Customised Solutions. The dispute centred around a proposed protected action ballot of employees. The National Union of Workers sought to conduct a ballot among the employees of Toll Customised Solutions to gauge support for protected industrial action. Toll Transport Pty Ltd opposed the ballot, arguing that the union did not have the requisite authorisation from its members to proceed with the ballot. The matter was heard by the Fair Work Commission, which had to determine whether the union could lawfully proceed with the ballot.

The legal issues before the Commission were primarily concerned with the procedural requirements for a protected action ballot under the Fair Work Act 2009. The Commission had to consider whether the union had properly notified Toll Transport Pty Ltd, as the employer, of its intention to conduct the ballot, and whether the union had obtained the necessary authorisation from its members to proceed with the ballot. Additionally, the Commission needed to assess whether the proposed ballot complied with the relevant provisions of the Fair Work Act, including the requirements for timing and notice.

The Fair Work Commission examined the evidence presented by both parties and considered the applicable legal framework. The Commission found that the union had not provided Toll Transport Pty Ltd with the requisite 21 days' notice of its intention to conduct the ballot, as required by the Fair Work Act. Furthermore, the Commission determined that the union had not obtained the necessary authorisation from its members to proceed with the ballot, as evidenced by the lack of a properly executed authorisation form. As a result, the Commission concluded that the union could not lawfully proceed with the ballot. The Commission upheld Toll Transport Pty Ltd's objection and ruled that the union's proposed ballot was invalid.

The Fair Work Commission's decision effectively prevented the union from proceeding with the ballot, ensuring that the employer's rights were protected under the Fair Work Act. The Commission's ruling reinforced the importance of adhering to the statutory requirements for protected action ballots, including the necessity of proper notification and member authorisation.

National Union of Workers v Toll Transport Pty Ltd T/A Toll Customised Solutions

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established