Transport Workers' Union of Australia v Australian Container Freight Services Pty Ltd t/a Trustee for the Australian Container Freight Services Trust

[2018] FWC 2100

[2018] FWC 2100

FAIR WORK COMMISSION

DECISION

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

Transport Workers' Union of Australia
v
Australian Container Freight Services Pty Ltd t/a Trustee for the Australian Container Freight Services Trust
(B2018/255)

DEPUTY PRESIDENT SAMS SYDNEY, 12 APRIL 2018

Proposed protected action ballot of employees of Australian Container Freight Services.

[1] This is an application, pursuant to s 437 of the Fair Work Act 2009 (‘the Act’) for a protected action ballot of employees employed by Australian Container Freight Services Pty Ltd t/a Trustee for the Australian Container Freight Services Trust (‘the employer’) who are eligible members of the Transport Workers’ Union of Australia (the ‘Union’) and whose employment falls within the classifications covered by the agreements set out below:

•  TWU-ACFS Fair Work Agreement 2014-2017 (PR567669)

•  TWU-ACFS Port Logistics Pty Ltd Fair Work Agreement 2015-2015 (PR579347)

•  Patrick Container Port Logistics (Port Botany) Enterprise Agreement 2015 (PR570717)

•  Patrick Logistics (Port Services NSW) and TWU Enterprise Agreement 2014 PR560441

•  Patrick Port Logistics (Fremantle) Enterprise Agreement 2015 (PR568116)

[2] The relevant statutory provisions governing applications of this kind are set out at s 443 of the Act as follows:

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.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(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.

[3] The Fair Work Commission (the ‘Commission') was advised on 11 April 2018 that the employer does not oppose the making of the proposed order. In these circumstances, I have determined the matter ‘on the papers’. I am satisfied that the application has been made in accordance with the requirements of s 437 of the Act and that the Union is genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[4] Given that I am satisfied that s 443(1)(a) and (b) have been complied with, the Commission must make the protected ballot order, as sought by the Union. Accordingly, an order in terms of the draft order attached to the application will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR601943>