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;

(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

In the Fair Work Commission, the Transport Workers' Union of Australia filed a case against Australian Container Freight Services Pty Ltd, acting as the trustee for the Australian Container Freight Services Trust, concerning a proposed ballot of employees for protected action. The dispute arose from the union's intention to hold a vote among the employees to determine whether to take protected action, which is a form of industrial action authorised under the Fair Work Act 2009. The employer contested the union's proposed ballot, arguing that it did not meet the statutory requirements for a protected action ballot.

The central legal issues before the Commission involved the interpretation and application of the Fair Work Act, specifically sections 397 and 398, which outline the procedures for a protected action ballot. The Commission had to determine whether the union's proposed ballot complied with the legislative requirements, including the necessity for the ballot to relate to a workplace dispute and the requirement for the union to provide the employer with specific details about the proposed industrial action. Additionally, the Commission considered whether the employer's objections to the ballot were justified and whether there were any procedural irregularities that would invalidate the ballot.

The Commission found that the union's proposed ballot did not meet the statutory criteria for a protected action ballot under the Fair Work Act. The ballot did not relate to a workplace dispute as defined by the Act, and the union had failed to provide the necessary details about the proposed industrial action to the employer. Consequently, the Commission ruled that the proposed ballot was invalid. The Commission emphasised that for a ballot to be valid, it must strictly adhere to the legislative requirements, and any deviations could render the ballot ineffective. The employer's objections were upheld, and the proposed ballot was disallowed.

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

DECISION

443 When the FWC must make a protected action ballot order

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established