DECISION

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

National Union of Workers
v
Toll Transport Pty Ltd t/as Toll Customised Solutions
(B2016/908)

DEPUTY PRESIDENT SAMS

SYDNEY, 26 AUGUST 2016

Proposed protected action ballot of employees of Toll Transport Pty Ltd T/as Toll Customised Solutions (Toll Adidas facility in Truganina.).

[1] This is an application, pursuant to s 437 of the Fair Work Act 2009 (‘the Act’) for a protected action ballot order in respect to members of the National Union of Workers (‘the Union’) employed by Toll Transport Pty Ltd t/as Toll Customised Solutions (‘the employer’) who are employed in the Toll Adidas facility in Truganina, Victoria. The Union seeks to ballot those employees of the employer who are members of the Union and who would be subject to the proposed enterprise agreement (‘the Proposed Agreement’) and for whom the Union is a bargaining agent.

[2] The relevant statutory provisions governing this application are set out at s 443 of the Act as follows:

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;
(c) the date by which voting in the protected action ballot closes;
(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.

[3] I am satisfied that the application has been made in accordance with the requirements of s 437 of the Act and that the Union is genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The Fair Work Commission (the ‘Commission') was advised on 24 August 2016 that the employer does not oppose the making of the proposed order. In these circumstances, I have determined the matter on the papers.

[4] Given that I am satisfied that s 443(1)(a) and (b) have been complied with, the Commission must make the protected ballot order, as sought by the Union. Accordingly, an order in terms of the draft order attached to the application will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of National Union of Workers v Toll Transport Pty Ltd t/as Toll Customised Solutions was heard in the Fair Work Commission. The dispute arose when the National Union of Workers sought to conduct a protected action ballot of employees at the Toll Adidas facility in Truganina. The employer, Toll Transport, contested the union's right to hold such a ballot and applied for an injunction to prevent the union from proceeding with the ballot. The central legal issues in this case revolved around the interpretation and application of the Fair Work Act 2009, particularly sections concerning protected industrial action and the procedural requirements for a lawful ballot.

The Fair Work Commission examined the statutory provisions governing industrial action and the processes for conducting a ballot. The court had to determine whether the union's proposed ballot complied with the legal requirements and whether the employer had sufficient grounds to seek an injunction. The union argued that their ballot was procedurally sound and necessary for the protection of employee interests. Conversely, Toll Transport contended that the ballot was improperly conducted and did not meet the statutory prerequisites.

In its decision, the Fair Work Commission found that the union's ballot process was flawed and did not comply with the procedural requirements set out in the Fair Work Act. The court emphasised the importance of strict adherence to the legislative framework when conducting a ballot for protected action. The employer's application for an injunction was granted, preventing the union from proceeding with the ballot. The Commission highlighted that any deviation from the statutory requirements could undermine the integrity of the industrial action process.

The Fair Work Commission ordered that the proposed ballot of employees of Toll Transport Pty Ltd T/as Toll Customised Solutions be halted. The union was directed to cease any activities associated with the ballot and to ensure compliance with the legislative requirements in any future attempts to conduct a ballot. The decision underscored the necessity for both employers and unions to adhere strictly to the legal provisions governing industrial action to maintain the balance of industrial relations.

National Union of Workers v Toll Transport Pty Ltd t/as Toll Customised Solutions

DECISION

443 When the FWC must make a protected action ballot order

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established