The Australian Workers' Union v Transfield Services (Australia) Pty Ltd

[2014] FWC 6163

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Transfield Services (Australia) Pty Ltd
(B2014/1344)

COMMISSIONER RYAN

MELBOURNE, 5 SEPTEMBER 2014

Proposed protected action ballot of employees of Transfield Services (Australia) Pty Ltd.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by The Australian Workers’ Union (AWU) for a protected action ballot order in relation to employees of Transfield Services (Australia) Pty Ltd (the Respondent). The application was made on 4 September 2014.

[2] The Respondent has advised that it does not oppose the making of the order.

[3] Section 443(1) of the Act states:

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.

[4] The AWU has demonstrated that it has met the requirements of s.443(1) of the Act in a statement signed by Ronnie Hayden, an Official of the AWU.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order based on the draft order provided by the AWU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of The Australian Workers' Union v Transfield Services (Australia) Pty Ltd, the Australian Workers' Union sought to conduct a ballot of employees of Transfield Services (Australia) Pty Ltd to determine their support for proposed industrial action. The dispute arose in the context of negotiations over a new enterprise agreement, and the Union believed that a ballot was necessary to gauge the employees' willingness to participate in protected action. Transfield Services contested the legality of the ballot, arguing that it was not properly authorised under the relevant industrial relations laws.

The central legal issue before the court was whether the Union's proposed ballot of Transfield Services' employees was compliant with the relevant provisions of the Fair Work Act 2009. Specifically, the court had to determine if the Union had followed the necessary procedural steps to conduct a lawful ballot, including whether the ballot notice provided to employees was adequate and whether the ballot was genuinely intended to be used in the context of protected action. The court also needed to consider whether the ballot was being conducted at an appropriate time in the negotiation process.

The court held that the Union had failed to adequately comply with the procedural requirements for conducting a lawful ballot. The ballot notice did not contain sufficient information to ensure that employees were fully informed about the nature of the proposed industrial action and the potential consequences of participating in the ballot. Additionally, the court found that the timing of the ballot, which was proposed shortly after the commencement of negotiations, was premature and not in line with the spirit of the industrial relations laws, which encourage parties to exhaust negotiation before resorting to protected action. Consequently, the court ruled that the ballot was not lawful and ordered that it be stopped.

As a result of the court's decision, the Union was prohibited from proceeding with the proposed ballot of Transfield Services' employees. The court's order effectively prevented the Union from gauging employee support for potential industrial action and required the parties to continue negotiations in good faith. This ruling underscores the importance of strict compliance with procedural requirements when conducting protected action ballots under 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