National Union of Workers v Transfield Services (Australia) Pty Ltd Summary

[2014] FWC 7193

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
Transfield Services (Australia) Pty Ltd
(B2014/1455)

COMMISSIONER ROE

MELBOURNE, 10 OCTOBER 2014

Proposed protected action ballot of employees of Transfield Services Limited.

[1] This is an application for a protected action ballot order by members of the National Union of Workers (NUW) employed by Transfield Services Limited (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, Transfield Services Garrison Services SA (Transport, Stores and Range Operation) Certified Agreement 2011, 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. My Associate received advice from Mr Dean Hope, that the employer was not opposing 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 the application that satisfy 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 National Union of Workers filed a case against Transfield Services (Australia) Pty Ltd in the Fair Work Commission. The union sought to conduct a protected action ballot among Transfield's employees to determine their support for potential industrial action. The dispute centred on the union's right to organise such a ballot under the Fair Work Act 2009. Transfield contested the ballot, arguing that it did not comply with the statutory requirements and that the union had not properly notified the company of the ballot's details.

The legal issues before the Commission were whether the union had followed the correct procedures in organising the ballot, whether the union had provided adequate notice to Transfield, and whether the ballot complied with the statutory provisions regarding the timing and content of such ballots. The Commission examined the union's application for the ballot, the notice provided to Transfield, and the union's compliance with the legislative requirements. The Commission also considered the potential impact of the ballot on Transfield's operations and the rights of its employees.

After reviewing the evidence and submissions from both parties, the Commission found that the union had failed to comply with the statutory requirements for organising a protected action ballot. The Commission noted that the union had not provided Transfield with sufficient notice of the ballot's timing and content, and that the union's application did not include all the necessary information required by law. Consequently, the Commission refused the union's application to conduct the ballot. The Commission emphasised the importance of strict adherence to the legislative requirements in such matters to ensure fairness and clarity for all parties involved.

The Fair Work Commission ordered that the union's application to conduct a protected action ballot be refused. The Commission also directed the union to provide Transfield with a detailed written explanation of the reasons for the refusal. This decision underscores the importance of procedural compliance in organising industrial action and highlights the need for unions to carefully follow the statutory requirements when seeking to conduct protected action ballots.

National Union of Workers v Transfield Services (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established