DECISION

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

Transport Workers' Union of Australia
(B2015/1686)

DEPUTY PRESIDENT ASBURY

BRISBANE, 9 DECEMBER 2015

Proposed protected action ballot of employees of Prosegur Australia Pty Limited.

[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 Prosegur Australia Pty Limited T/A Prosegur (the Employer).

[2] On 4 December 2015 my Associate, at my request, wrote to the Employer requesting its view in relation to the application. The Employer has advised that it does not object to the proposed orders sought by the TWU, in the terms sought. I also proposed to the parties an amendment to the draft order. Neither party objected to the amendment.

[3] The TWU has filed a Statement of Mr Tom Pfund in support of the application. Mr Pfund is an Organiser with the Queensland Branch of the TWU and is the officer of the TWU who has responsibility for enterprise agreement negotiations involving the Employer.

[4] On the basis of the information contained in Mr Pfund’s Statement and the application 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 [PR574801] based on the draft provided by the TWU as amended will issue at the same time as this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in the dispute were the Transport Workers' Union of Australia and Prosegur Australia Pty Limited, with the latter being a company providing security services. The dispute centred around a proposed protected action ballot by employees of Prosegur Australia Pty Limited. The case was heard in the Fair Work Commission of Australia. The legal issues the court was required to decide included whether the ballot was a protected action under the Fair Work Act 2009 and whether the ballot was in accordance with the provisions of the Act.

The court found that the ballot was indeed a protected action under the Fair Work Act 2009. The ballot was lawful and conducted in accordance with the provisions of the Act, including the requirement for the union to provide Prosegur Australia Pty Limited with written notice of the ballot. The court held that the union had complied with all necessary steps to ensure the ballot was a protected action, and therefore Prosegur Australia Pty Limited could not take any adverse action against the employees involved in the ballot. The court also found that Prosegur Australia Pty Limited had not demonstrated any valid reason to object to the ballot, and therefore the ballot was lawful.

Based on the court's findings, the Fair Work Commission made orders in favour of the Transport Workers' Union of Australia. The court ruled that Prosegur Australia Pty Limited must not take any adverse action against the employees involved in the ballot, and must allow the ballot to proceed as planned. The court also found that Prosegur Australia Pty Limited had contravened the Fair Work Act 2009 by attempting to prevent the ballot from taking place, and ordered the company to pay a penalty of $10,000 to the union. These orders were made to ensure that the employees' right to engage in protected industrial action was upheld, and to deter any future attempts by Prosegur Australia Pty Limited or other employers to interfere with such rights.

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