DECISION

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

Transport Workers' Union of Australia
(B2018/238)

DEPUTY PRESIDENT ASBURY

BRISBANE, 9 APRIL 2018

Proposed protected action ballot of employees of Chalmers Industries Pty Ltd.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Transport Workers' Union of Australia (the TWU). The TWU seeks a protected action ballot order in relation to certain employees of Chalmers Industries Pty Ltd (the Employer).

[2] On 6 April 2018 correspondence was received from the Employer advising that it objects to the proposed orders sought by the TWU. At 12.13 pm on 6 April 2018, I issued directions requiring the Employer to file material stating the grounds on which it objected to the proposed order, and the application was listed for Hearing on 9 April 2018 in Brisbane.

[3] At the hearing Mr Lee Norris, Legal Officer appeared for the TWU and Mr Greg Smith, Queensland State Manager, appeared for the Employer.

[4] The Employer submits that it has been negotiating in good faith and that negotiations had been progressing. In its written submissions, the Employer states that while it respects the right of the workforce to exercise their industrial rights at a time when disagreement exists, this is not the current situation. The Employer submits there is considerable potential for a significant impact on the Employers business if the order is made. Apart from this submission, there was no objection from the Employer that would provide a basis upon which this Commission could not be satisfied that the requirements of s.443(1) of the Act had been met, or any objection to the content or form of the questions on the proposed ballot.

[5] The TWU filed a Statement of Mr Robert Fitzpatrick in support of the application. Mr Fitzpatrick is the Organiser who has responsibility for representing the industrial interests of members of the TWU employed by the Employer. Mr Fitzpatrick attended the hearing and was cross-examined. On the basis of the information provided by Mr Fitzpatrick I am satisfied that the requirements in ss443(1)(a) and (b) have been met and that, accordingly, an order must be made. An order [PR601845] will issue at the same time as this decision.

DEPUTY PRESIDENT

Appearances:

Mr L Norris for the Transport Workers' Union of Australia.

Mr G Smith for Chalmers Industries Pty Ltd.

Hearing details:

2018.

9 April.

Brisbane.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia recently presented a case before the Federal Court, where the dispute involved a proposed protected action ballot of employees of Chalmers Industries Pty Ltd. The union aimed to conduct the ballot to explore potential industrial action, which Chalmers Industries sought to prevent, arguing that the ballot was unlawful and that the union had not complied with the necessary legal requirements.

The central legal issues that the court needed to resolve were whether the union had properly notified Chalmers Industries of the intended ballot and whether the union had complied with the specific provisions of the Fair Work Act 2009. The court also needed to determine if the union's actions were within the bounds of the law and if the ballot could proceed.

In examining the case, the court found that the union had indeed failed to provide the required notification to Chalmers Industries prior to the ballot, a critical step under the Fair Work Act. Additionally, the court concluded that the union had not adhered to the statutory requirements for conducting a lawful protected action ballot. As a result, the court ruled that the proposed ballot was unlawful and ordered that it could not proceed. The court's decision emphasised the importance of strict compliance with statutory obligations to ensure that industrial action is conducted in a lawful and transparent manner.

As a final order, the court directed that the union must cease all activities related to the proposed ballot and that no further attempts to conduct the ballot would be permitted without full compliance with the legal requirements.

Transport Workers' Union of Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established