Transport Workers' Union of Australia NSW/QLD (Interim Governance) Branch v Boral Transport Limited

[2023] FWC 1338

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia NSW/QLD (Interim Governance) Branch
v

Boral Transport Limited

(B2023/531)

DEPUTY PRESIDENT CROSS

SYDNEY, 7 JUNE 2023

Proposed protected action ballot of employees of Boral Transport Limited

This is an application by the Transport Workers’ Union of Australia NSW/QLD (Interim Governance) Branch (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Boral Transport Limited (Respondent).

On 7 June 2023, the Fair Work Commission was advised that the Respondent did not oppose the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Ray Fitzpatrick of the Applicant declared on 5 June 2023, 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.

An Order has been separately issued in PR762847.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the Transport Workers’ Union of Australia NSW/QLD (Interim Governance) Branch seeking authorisation for a protected action ballot among certain employees of Boral Transport Limited. The application was made under section 437 of the Fair Work Act 2009, which pertains to protected action. The union sought to ballot its members to take protected industrial action, a move that would require prior notification to the employer if certain statutory conditions were met. Boral Transport Limited did not oppose the application, leading to the Commission's decision to proceed with the matter based on the submitted documentation without the need for a formal hearing.

The legal issues before the Fair Work Commission centred on whether the union had genuinely been attempting to reach an agreement with the employer and whether the statutory notification period for a protected action ballot had been correctly calculated. The union's application needed to satisfy the requirements of section 443(1) of the Fair Work Act, which outlines the conditions that must be fulfilled before a ballot for protected action can proceed. Specifically, the union had to demonstrate that it had been genuinely attempting to negotiate an enterprise agreement and that it had complied with the notification period stipulated by the Act.

In determining the application, Deputy President Cross reviewed the statutory declaration provided by Ray Fitzpatrick of the union, which detailed the union's negotiation efforts and adherence to the notification requirements. Based on the evidence presented, the Deputy President was satisfied that the union had indeed been genuinely trying to reach an agreement with Boral Transport Limited and that the notification period had been correctly applied. Consequently, the application was approved, and an order for the ballot was issued. This decision was made in light of the union's compliance with the legislative requirements and the lack of opposition from the employer.

The Fair Work Commission issued an order permitting the Transport Workers’ Union of Australia NSW/QLD (Interim Governance) Branch to proceed with a ballot for protected action among its members employed by Boral Transport Limited. This order was issued under the authority of the Fair Work Act 2009 and was contingent upon the union's compliance with the statutory notification period and its genuine efforts in bargaining with the employer. The decision underscores the importance of adhering to the legislative framework when unions seek to take industrial action, ensuring that the processes are transparent and that both parties' rights are respected.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established