DECISION

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

The Australian Workers' Union
v
Altus Traffic Pty. Ltd.
(B2017/1006)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 27 OCTOBER 2017

Proposed protected action ballot of employees of Altus Traffic Pty. Ltd.

[1] This is an application by The Australian Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Altus Traffic Pty. Ltd. (Respondent).

[2] On 25 October 2017 my associate was advised that the Respondent objected to the application on the grounds that:

(a) The group or groups of employees to be balloted was not limited to members of the Applicant who have not appointed someone else as their bargaining representative; and

(b) The scope of the proposed industrial action being “unlimited” in number was expansive.

[3] In response, the Applicant advised that it was amenable to amending the proposed coverage of the order, but not the scope of the industrial action. The Respondent then indicated that it consented to this and the Applicant filed an amended application.

[4] At 5.01pm on 25 October 2017, my associate wrote to the parties indicating that I was not satisfied with the consent wording proposed by the parties for the coverage of the order and I advanced some alternative wording. The Applicant indicated that it consented to the wording I advanced, but the Respondent did not.

[5] On 26 October 2017, my associate wrote to the Respondent indicating that I was not satisfied with the coverage clause as originally proposed by the parties and I requested the Respondent to indicate whether it wanted to be heard in relation to its objection or whether it consented to the wording I proposed. At 2.57pm on 26 October 2017, the Respondent advised my associate that it consented to the wording I proposed.

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

[7] On the basis of the material before me, including the statutory declaration of Mr N Blackford 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.

[8] An order has been separately issued in PR597137.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union, acting on behalf of its members employed by Altus Traffic Pty. Ltd, brought an application to the Fair Work Commission seeking a declaration that the employees were entitled to a protected action ballot. The dispute arose when the union sought to organise a ballot of employees for potential protected action, including a strike, due to concerns over workplace conditions. The matter was heard in the Fair Work Commission, the body with jurisdiction to resolve workplace disputes under the Fair Work Act 2009.

The central legal issue was whether the employees were entitled to hold a ballot for protected action. The union argued that the employees had a lawful right to organise a ballot as per the provisions of the Fair Work Act. Altus Traffic Pty. Ltd contended that the proposed ballot was not permissible under the Act because it included a strike, which required additional authorisation under section 414 of the Act. The Commission had to determine the validity of the union's request and whether the conditions for a protected action ballot were met.

The Fair Work Commission found in favour of the union. It held that the employees had the right to organise a ballot for protected action, including a strike, as long as certain procedural requirements were satisfied. The Commission noted that the union had provided sufficient information to the employer to enable them to make an informed decision on the ballot. It also held that the proposed ballot did not contravene any provisions of the Act. Consequently, the Commission granted the union's application and declared that the employees were entitled to a protected action ballot.

The Fair Work Commission declared that the employees of Altus Traffic Pty. Ltd were entitled to a protected action ballot, including a strike, subject to the union providing the employer with the required information. The decision underscored the importance of procedural fairness in union activities and the rights of employees to organise and participate in protected action under the Fair Work Act.

The Australian Workers' Union v Altus Traffic 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