Transport Workers' Union of Australia, NSW Branch v K & S Freighters Pty Limited T/A K & S Freighters

[2019] FWC 3568

[2019] FWC 3568

FAIR WORK COMMISSION

DECISION

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

Transport Workers' Union of Australia, NSW Branch
v
K & S Freighters Pty Limited T/A K & S Freighters
(B2019/412)

COMMISSIONER CAMBRIDGE SYDNEY, 24 MAY 2019

Proposed protected action ballot of employees of K & S Freighters Pty Limited.

[1] On 22 May 2019, the Transport Workers’ Union of 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 K & S Freighters Pty Limited (the employer) whose employment is to be regulated by a proposed agreement to replace the Newcastle Drivers Enterprise Agreement 2015.

[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 Ray Fitzpatrick (the Statutory Declaration) dated 20 May 2019. In summary, the Statement 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 a communication dated 23 May 2019 from the employer 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 later that same day 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 [PR708619] is issued separately.

COMMISSIONER

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