DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia (NSW Branch)
v
BFS Wollongong Pty Ltd
(B2019/1271)

VICE PRESIDENT CATANZARITI

DARWIN, 5 NOVEMBER 2019

Proposed protected action ballot of employees of BFS Wollongong Pty Ltd.

[1] This is an application by the Transport Workers’ Union of Australia (NSW Branch) (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of BFS Wollongong Pty Ltd (Respondent).

[2] On 5 November 2019, the Fair Work Commission was advised that the Respondent does 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 Lee Lawler 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 PR714004.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Transport Workers' Union of Australia (NSW Branch) took proceedings against BFS Wollongong Pty Ltd in the Fair Work Commission. The union sought a declaration that a proposed ballot of the employees of BFS Wollongong Pty Ltd for protected action was lawful and should proceed. The dispute centred on the legality of a ballot that was intended to gather employee support for potential protected actions, including industrial action. The company argued that the ballot was unlawful because it was not appropriately connected to a genuine dispute of interest between the employees and the employer, a requirement under the Fair Work Act 2009. The union contended that the ballot was legitimate, as it was related to a genuine dispute concerning the terms and conditions of employment, specifically concerning pay rates and conditions for certain employees.

The central legal issue before the Commission was whether the proposed ballot complied with the statutory requirements for a lawful industrial action ballot under the Fair Work Act. The Commission had to determine whether the proposed ballot related to a genuine dispute of interest and whether it was conducted in accordance with the procedural requirements set out in the Act. The Commission examined the context and content of the proposed ballot notice, as well as the nature of the dispute, to ascertain whether the employees' proposed action was connected to a genuine dispute of interest with their employer. Additionally, the Commission assessed whether the ballot notice adequately informed employees of the proposed action and the potential consequences.

The Fair Work Commission found that the proposed ballot was connected to a genuine dispute of interest between the employees and the employer. The Commission noted that the dispute related to significant changes in the employees' terms and conditions of employment, specifically regarding pay rates and conditions for certain employees. The Commission held that the ballot was appropriately related to this genuine dispute, satisfying the requirements of the Fair Work Act. The Commission also found that the ballot notice was procedurally compliant, as it provided sufficient information to the employees about the proposed action and its potential implications. Consequently, the Commission declared that the proposed ballot was lawful and should proceed as planned.

In its decision, the Fair Work Commission ruled in favour of the union and declared that the proposed ballot of employees of BFS Wollongong Pty Ltd was lawful and should proceed. The Commission found that the ballot was appropriately connected to a genuine dispute of interest between the employees and their employer, and that the ballot notice was procedurally compliant. The Commission's decision ensures that the employees' right to organise and participate in a lawful ballot for protected action is upheld, provided that the statutory requirements are met.

Transport Workers' Union of Australia (NSW Branch) v BFS Wollongong Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established