Toll Transport Pty Ltd trading as Toll Express v Transport Workers' Union of New South Wales and the Transport Workers' Union of Australia NSW Branch

[2017] FWC 1245

[2017] FWC 1245

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Toll Transport Pty Ltd trading as Toll Express
v
Transport Workers’ Union of New South Wales and the Transport Workers’ Union of Australia NSW Branch
(C2017/1143)

COMMISSIONER CAMBRIDGE SYDNEY, 2 MARCH 2017

Application for an Order that industrial action by employees or employers stop etc.

[1] This is the edited text of an extempore Decision made in transcript during proceedings held on 2 March 2017.

[2] This matter involves an application made under s. 418 of the Fair Work Act 2009 (the Act), seeking that the Fair Work Commission (the Commission) make an Order that industrial action that is happening, threatened, impending, probable or being organised is to stop, not occur or not be organised.

[3] Section 418 of the Act is in the following terms:

“418 FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.
Note: For interim orders, see section 420.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, the FWC does not have to specify the particular industrial action.

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that stop period;

the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”

[4] The application has been made by Toll Transport Pty Ltd trading as Toll Express (the employer) and it seeks an Order against the Transport Workers’ Union of New South Wales and the Transport Workers’ Union of Australia NSW Branch (the Unions) and members of the Unions who are employed at the employer’s terminal located at Eastern Creek, New South Wales.

[5] The Hearing of this application commenced via urgent notice of listing at 5:00pm today, 2 March 2017. The employer was not in a position to provide any substantial evidentiary material in support of the application. The Unions were understandably unable to properly prepare a case in opposition to the application in the time available. However, the s. 418 application is related to other proceedings taken by the employer under s. 739 of the Act. In the circumstances, particularly as the Commission had been dealing with the subject matter of the dispute in the s. 739 proceedings, the employer requested that the Commission make an Interim Order under s. 420 of the Act.

[6] Section 420 of the Act is in the following terms:

“420 Interim orders etc.

Application must be determined within 2 days

(1) As far as practicable, the FWC must determine an application for an order under section 418 or 419 within 2 days after the application is made.

Interim orders

(2) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order that the industrial action to which the application relates stop, not occur or not be organised (as the case may be).

(3) However, the FWC must not make the interim order if the FWC is satisfied that it would be contrary to the public interest to do so.

(4) In making the interim order, the FWC does not have to specify the particular industrial action.

(5) An interim order continues in operation until the application is determined.”

[7] The Unions made submissions opposing the granting of any Interim Orders on the basis that any such Interim Order would be contrary to the public interest. The employer pressed for the making of an Interim Order.

[8] The Commission has considered the competing submissions concerning any Interim Order. The Commission has decided to make an extempore determination of the question of the issue of any Interim Order pursuant to s. 420 of the Act. The Commission is satisfied that the circumstances as contemplated by subsection 420 (2) of the Act have been established in this instance. Therefore the Commission is obliged to make an Interim Order unless satisfied that it would be contrary to the public interest to do so (subsection 420 (3)).

[9] The Commission has determined that it would not be contrary to the public interest to make an Interim Order in the terms sought by the employer. The Interim Order [PR590689] shall be issued accordingly, and it shall operate until the application has been determined.

COMMISSIONER

Appearances:

Ms K Alam for Toll Transport Pty Limited trading as Toll Express.

Mr G Webb and Mr H Lau of the Transport Workers’ Union of Australia.

Hearing details:

2017.

Sydney:

March, 2.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR590690>