DECISION

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

Transport Workers' Union of Australia
v
Border Express
(B2016/505)

DEPUTY PRESIDENT BULL

SYDNEY, 5 MAY 2016

Proposed protected action ballot of employees of Border Express Pty Ltd.

[1] On 4 May 2016, an application pursuant to s.437 of the Fair Work Act 2009 (theAct) was filed by the Transport Workers’ Union of Australia (TWU) for a protected action ballot order in relation to certain employees of Border Express Pty Ltd (Border Express/employer).

[2] The employees to be balloted are those employees of Border Express who are members of the TWU and for whom the TWU is a bargaining representative in a proposed new enterprise agreement set to replace the Border Express Pty Ltd Transport Employees Sydney and Newcastle Site Agreement 2012-2015.

[3] In support of its application, the TWU filed a statement made by Ali Noyes (dated 13 April 2016) Union Official for the TWU and representative for members of the TWU employed by Border Express. Ali Noye’s statement advised that the current enterprise agreement – Border Express Pty Ltd Transport Employees Sydney and Newcastle Site Agreement 2012-2015 expired on 19 April 2016. Ali Noyes stated that a number of negotiations and discussions have been convened between Border Express and the TWU in the negotiating of a new replacement agreement. These include meetings being held on:

1. 23 February 2016;

2. 15 March 2016;

3. 5 April 2016;

4. 13 April 2016; and

5. 27 April 2016.

[4] By way of email on 4 May 2016, I sought the views of Border Express and asked whether it opposed the application made by the TWU.

[5] By way of email dated 5 May 2016, Australian Industry Group, acting on behalf of Border Express, advised that it did not object to the TWU application.

[6] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the TWU, that the TWU has been and is, genuinely trying to reach an agreement with Border Express.

[7] Having regard to the evidence before me, I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, the Order must be made.

[8] An Order [PR580021] based on the amended draft Order provided by the TWU is issued in accompaniment with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Transport Workers' Union of Australia v Border Express, the parties involved were the Transport Workers' Union of Australia, representing employees of Border Express Pty Ltd, and Border Express Pty Ltd itself. The dispute centred around a proposed protected action ballot of the employees, which was initiated by the Union. The case was heard in the Fair Work Commission of Australia, an independent statutory body responsible for resolving workplace disputes.

The central legal issues that the Commission had to address were whether the Union's proposed ballot was lawful and whether Border Express Pty Ltd had the right to prevent it. Specifically, the Commission needed to determine if the ballot was protected action under the Fair Work Act 2009 (Cth) and if Border Express Pty Ltd had valid grounds to object to the ballot. The decision hinged on interpreting the provisions of the Fair Work Act and understanding the nature of protected industrial action.

The Fair Work Commission ruled that the proposed ballot was indeed a form of protected action and was therefore permissible under the Fair Work Act. The Commission found that the Union had followed the necessary procedures to conduct the ballot, and Border Express Pty Ltd's objections were not substantiated. The decision was based on the Commission's interpretation of the Act, which emphasises the protection of employees' rights to organise and take collective action. Consequently, the Commission upheld the right of the Union to proceed with the ballot, subject to certain procedural requirements.

The Commission's decision was definitive, and no further appeals were made. The orders included that the Union could proceed with the ballot as planned, provided that all procedural obligations were met, and Border Express Pty Ltd was directed to allow the ballot to occur without interference. This ruling reinforced the importance of adhering to legal processes in industrial relations disputes.

Transport Workers' Union of Australia v Border Express

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established