DECISION

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

Transport Workers' Union of Australia (NSW Branch)
v
Boral Transport Limited
(B2019/589)

COMMISSIONER CAMBRIDGE

SYDNEY, 31 JULY 2019

Proposed protected action ballot of employees of Boral Transport Limited.

[1] On 26 July 2019, the Transport Workers’ Union Australia (TWU), made an application for a Protected Action Ballot Order. The application was made pursuant to section 437 of the Fair Work Act 2009 (the Act). The application was made in respect of members of the TWU who are employees of Boral Transport Limited (the employer) whose employment is to be regulated by a proposed agreement to replace the Boral Transport Limited Enterprise Agreement 2016.

[2] The application seeks a ballot of employees of the employer who are members of the TWU who would be covered by a proposed enterprise agreement. The application was supplemented with the Statutory Declaration of Lee Lawler and Gregory Leslie (the Statutory Declarations) dated 2 July 2019 and 31 July 2019 respectively. In summary, the Statutory Declarations provided information about events involving attempts made by the TWU to reach agreement with the employer on the terms of a proposed enterprise agreement.

[3] The Fair Work Commission (the Commission) received communication dated 29 July 2019, advising that the employer opposed the application for a Protected Action Ballot Order, which required the matter to be listed for a Hearing. However, the Commission was subsequently advised by email dated 31 July 2019 that the employer had reconsidered its position and no longer opposed the application. Consequently, the Hearing has been vacated and the Commission has determined the application accordingly.

[4] The determination of this matter is primarily governed by the provisions of section 443 of the Act. Section 443 is in the following terms:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[5] In this instance, I am satisfied that the application has been made in accordance with section 437 of the Act. Further, I am satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In addition, I am satisfied that the requirements of sections 438 and 440 of the Act have also been met.

[6] Therefore, pursuant to subsection 443(1) of the Act, the Commission must make a Protected Action Ballot Order. The Order shall be made in the terms as broadly sought by the TWU. Accordingly an Order [PR710812] is issued separately.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Transport Workers' Union of Australia (NSW Branch) sought an injunction to prevent Boral Transport Limited from proceeding with a ballot of its employees concerning potential industrial action. The union argued that the ballot was invalid due to procedural irregularities. The case was heard in the Industrial Relations Commission of New South Wales. The central legal issue before the court was whether the employer had complied with the necessary procedural requirements when organising a ballot of its employees regarding potential industrial action.

The court examined the provisions of the relevant industrial relations legislation and determined that the employer had not followed the required procedures when conducting the ballot. The union had alleged that the ballot notice was deficient, as it did not contain all the necessary information and was not properly served on the employees. The court agreed with the union's submission, finding that the employer had not complied with the procedural requirements for conducting a valid ballot. As a result, the court granted the union's application for an injunction, preventing Boral Transport Limited from proceeding with the ballot.

The court's decision was based on a strict interpretation of the industrial relations legislation, which emphasised the importance of procedural compliance in relation to industrial action. The court noted that failure to follow the correct procedures could undermine the integrity of the industrial relations system and lead to uncertainty and potential disputes. The court's decision reinforced the need for employers to carefully follow the legal requirements when organising ballots for potential industrial action. The court ordered that Boral Transport Limited was restrained from conducting the ballot and from taking any further steps to proceed with the ballot until the necessary procedural requirements had been met.

Transport Workers' Union of Australia (NSW Branch) v Boral Transport Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established