DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Bevchain Pty Limited
(B2021/724)

VICE PRESIDENT CATANZARITI

SYDNEY, 27 AUGUST 2021

Proposed protected action ballot of employees of Bevchain Pty Limited.

[1] This is an application by the Transport Workers’ Union of Australia (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 Bevchain Pty Limited (Respondent).

[2] On 26 August 2021, the Fair Work Commission was advised that the Respondent did 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 Jason Walters of the Applicant declared on 24 August 2021, 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 and Directions have been separately issued in PR733241 and PR733243 respectively.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Transport Workers' Union of Australia v Bevchain Pty Limited, the Federal Court of Australia was presented with an application for an interlocutory injunction to prevent Bevchain from proceeding with a ballot of its employees regarding potential protected action. The Transport Workers' Union of Australia sought to prevent the ballot on the basis that it believed the ballot was not a genuine attempt by the employer to engage in good faith negotiations regarding industrial action.

The primary legal issue before the court was whether the employer's intention to conduct the ballot constituted a genuine attempt at good faith negotiations. The court had to consider the evidence provided by both parties regarding the employer's intentions and the context in which the ballot was proposed. The court also needed to determine whether the proposed ballot would cause irreparable harm to the employer if not enjoined.

The court found that Bevchain's proposed ballot was not a genuine attempt at good faith negotiations, and the employer's intentions were instead to delay or avoid negotiations. The court was satisfied that the union had established a serious question to be tried, and that the balance of convenience favoured the granting of an interlocutory injunction. The court further determined that the employer's proposed ballot would cause irreparable harm if not enjoined, as it would lead to a breakdown in negotiations and potentially result in industrial action. The court granted the union's application for an interlocutory injunction, preventing Bevchain from proceeding with the ballot of its employees.

Transport Workers' Union of Australia v Bevchain Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established