DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia (NSW Branch)
v
K & S Freighters Pty Ltd
(B2019/536)

VICE PRESIDENT CATANZARITI

DARWIN, 16 JULY 2019

Proposed protected action ballot of employees of K&S Freighters 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 K & S Freighters Pty Ltd (Respondent).

[2] On 12 July 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 Mark Smallwood 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 PR710317.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Transport Workers' Union of Australia (NSW Branch) versus K and S Freighters Pty Ltd, the issue at hand was a proposed industrial action ballot of employees working for K&S Freighters Pty Ltd. The Fair Work Commission, the body that heard the case, was tasked with determining whether the proposed ballot was protected action under the Fair Work Act 2009. The Transport Workers' Union of Australia (NSW Branch) had sought authorisation for the ballot, which was contested by K&S Freighters Pty Ltd.

The legal issues that needed to be addressed were whether the employees of K&S Freighters Pty Ltd constituted a "work group" and whether the ballot was genuinely intended to be used to facilitate the negotiation of an enterprise agreement. The court had to interpret the relevant provisions of the Fair Work Act 2009 and determine whether the proposed ballot met the criteria for protected action. The key issue was whether the proposed ballot was genuinely intended to facilitate the negotiation of an enterprise agreement.

The court determined that the employees of K&S Freighters Pty Ltd did constitute a "work group" as defined by the Fair Work Act 2009. Furthermore, the court found that the proposed ballot was genuinely intended to facilitate the negotiation of an enterprise agreement, as it was conducted in good faith and in accordance with the relevant provisions of the Act. The court noted that the proposed ballot was a necessary step in the process of negotiating a new enterprise agreement, and that the employees had a legitimate interest in ensuring that their terms and conditions of employment were adequately protected.

The court ultimately concluded that the proposed ballot of employees of K&S Freighters Pty Ltd was protected action under the Fair Work Act 2009. The Transport Workers' Union of Australia (NSW Branch) was granted authorisation for the ballot, and the employees were able to proceed with the proposed industrial action. The court's decision provided clarity on the interpretation of the relevant provisions of the Act and reinforced the importance of facilitating genuine industrial action in the pursuit of better terms and conditions for employees.

Transport Workers' Union of Australia (NSW Branch) v K and S Freighters 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