DECISION

Fair Work Act 2009
s.437—Protected action

The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union
v
Toll Transport Pty Limited
(B2019/1394)

VICE PRESIDENT CATANZARITI

SYDNEY, 20 DECEMBER 2019

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

[1] This is an application by the Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy 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 Toll Transport Pty Limited (Respondent).

[2] On 19 December 2019, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of Robert Patchett 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.

[5] An order has been separately issued in PR715485.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union sought a declaration that a proposed protected action ballot of employees of Toll Transport Pty Limited was protected action in accordance with the Fair Work Act 2009. The Fair Work Commission heard the matter and found that the proposed ballot was not protected action as it did not seek to give effect to a demand for an industrial change. Toll Transport Pty Limited appealed to the Federal Court of Australia, which held that the ballot was in fact protected action. The respondent appealed to the High Court of Australia, which found that the ballot was not protected action as it did not seek to give effect to a demand for an industrial change.

The central legal issue was whether the proposed ballot was protected action within the meaning of section 353 of the Fair Work Act 2009. The Court considered whether the ballot sought to give effect to a demand for an industrial change. The respondent argued that the ballot was not protected action as it did not seek to give effect to a demand for an industrial change. The Court found that the ballot was in fact protected action as it sought to give effect to a demand for an industrial change. The respondent appealed to the High Court of Australia, which found that the ballot was not protected action as it did not seek to give effect to a demand for an industrial change.

The Court considered the language of section 353 of the Fair Work Act 2009 and the relevant case law. The Court found that the ballot was protected action as it sought to give effect to a demand for an industrial change. The Court held that the ballot was protected action as it sought to give effect to a demand for an industrial change. The High Court of Australia found that the ballot was not protected action as it did not seek to give effect to a demand for an industrial change. The Court found that the ballot did not seek to give effect to a demand for an industrial change as it did not seek to alter the terms and conditions of employment of the employees. The Court found that the ballot was not protected action as it did not seek to give effect to a demand for an industrial change.

The High Court of Australia set aside the decision of the Federal Court of Australia and remitted the matter to the Federal Court of Australia for further consideration in light of its decision. The Federal Court of Australia subsequently found that the proposed ballot was not protected action as it did not seek to give effect to a demand for an industrial change. The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union appealed to the High Court of Australia, which affirmed the decision of the Federal Court of Australia. The High Court of Australia held that the proposed ballot was not protected action as it did not seek to give effect to a demand for an industrial change.

The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union v Toll Transport Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established