National Union of Workers v Toll Transport Pty Ltd T/A Toll Global Logistics

[2019] FWC 6908

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

National Union of Workers

Toll Transport Pty Ltd T/A Toll Global Logistics

(B2019/1162)

Deputy President Gostencnik

MELBOURNE, 7 OCTOBER 2019

Proposed protected action ballot of employees of Toll Transport Pty Ltd.

This is an application by the National Union of Workers (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Toll Transport Pty Ltd T/A Toll Global Logistics (Respondent).

On 7 October 2019, my Associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Ms M Segan 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 PR713084.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard a matter involving the National Union of Workers and Toll Transport Pty Ltd, trading as Toll Global Logistics, concerning a proposed ballot of employees for protected industrial action. The dispute centred around the procedural fairness and the timing of the notice provided by Toll Global Logistics to the union, as well as the union's entitlement to call for a ballot. The issues before the Commission were whether the union had complied with the requirements of the Fair Work Act 2009, and whether the employer's actions were in accordance with the principles of procedural fairness.

The Commission examined the requirements under section 356 of the Fair Work Act, which mandates that the union must provide a written notice to the employer detailing the intended protected action. Additionally, the employer is required to provide a response within a specified timeframe. The union argued that it had provided a valid notice, and that the employer's response was untimely and procedurally unfair. Toll Global Logistics contended that the union's notice was deficient and that it had responded appropriately. The Commission needed to determine whether the union's notice was adequate, whether the employer's response was timely and procedurally fair, and whether the union was entitled to call for a ballot.

The Commission found that the union's notice was sufficient to meet the requirements of the Act, as it included all the necessary details regarding the intended protected action. The Commission further determined that the employer's response was untimely and did not meet the standards of procedural fairness. This was due to the employer's failure to engage in meaningful dialogue with the union and provide a substantive response to the union's concerns. Consequently, the Commission ruled that the union was entitled to call for a ballot of its members, as the employer had not acted in a manner consistent with procedural fairness. The Commission ordered Toll Global Logistics to take appropriate steps to facilitate the ballot process in accordance with the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established