DECISION

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

Transport Workers' Union of Australia
(B2015/1659)

DEPUTY PRESIDENT ASBURY

BRISBANE, 27 NOVEMBER 2015

Proposed protected action ballot of employees of Transpacific 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 Transpacific Industries Pty Ltd (the Employer).

[2] On 27 November 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.

[3] The TWU has filed a Statement of Mr Troy Fernandez in support of the application. Mr Fernandez 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 Fernandez’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 [PR574506] based on the draft provided by the TWU will issue at the same time as this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Transport Workers' Union of Australia and Transpacific Industries Pty Ltd. The union sought to conduct a ballot of its members, who were employees of Transpacific, to determine whether to engage in protected industrial action. The primary dispute centred around the union's right to conduct the ballot under the Fair Work Act 2009 (Cth). Transpacific Industries opposed the ballot, arguing that the union's actions were unlawful and that the ballot itself was not appropriately structured. The matter was heard in the Fair Work Commission, Australia's industrial relations tribunal.

The central legal issues that the Commission had to address were whether the union's proposed ballot complied with the legislative requirements set out in the Fair Work Act. Specifically, the Commission needed to determine if the ballot notice provided by the union sufficiently detailed the proposed action and if the ballot was reasonably necessary for the union to organise its members. The Commission also had to consider whether the proposed ballot was conducted in good faith and whether it adhered to the procedural fairness principles applicable under the Act.

The Fair Work Commission found that the union's proposed ballot was compliant with the statutory requirements. It held that the ballot notice provided by the union was sufficiently detailed and that the ballot was reasonably necessary to organise the union's members. The Commission concluded that the union's actions were conducted in good faith and did not contravene any provisions of the Fair Work Act. Consequently, the Commission authorised the union to proceed with the ballot as proposed. The decision underscores the importance of ensuring that union activities comply with the statutory framework while protecting the rights of both employers and employees.

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