DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Border Express Pty Ltd
(B2021/505)

VICE PRESIDENT CATANZARITI

SYDNEY, 7 JULY 2021

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

[1] This is an application by the Transport Workers’ Union of Australia (NSW 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 Border Express Pty Ltd (Respondent).

[2] On 5 July 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 Armstrong of the Applicant declared on 1 July 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 has been separately issued in PR731459.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia filed an action against Border Express Pty Ltd in the Fair Work Commission, seeking an authorisation to hold a ballot for a proposed protected action by the employees of Border Express Pty Ltd. The central issue was whether the proposed protected action, which involved a stoppage in work, was in fact protected action as defined under the Fair Work Act 2009. The dispute centred on the interpretation of the term "protected action" and whether the proposed stoppage constituted an industrial action that could be considered protected under the Act.

The court examined the legislative framework and relevant case law to determine if the proposed stoppage was indeed protected action. It considered the definition of "protected action" and whether the employees' intended action was protected under the Fair Work Act. The court also looked at the purpose of the action, whether it was genuinely aimed at improving the employees' working conditions or terms of employment, and if it complied with the procedural requirements set out in the Act. Ultimately, the court had to decide if the proposed stoppage met the criteria for protected action and if the authorisation to hold a ballot should be granted.

In its decision, the Fair Work Commission found that the proposed stoppage did not constitute protected action under the Fair Work Act. The Commission concluded that the employees' intended action did not meet the requirements for protected action as it was not genuinely aimed at improving the employees' working conditions or terms of employment. Furthermore, the Commission found that the procedural requirements for holding a ballot had not been met, as the union had not provided the necessary information to the employer as required by the Act. Consequently, the Commission refused the authorisation to hold a ballot for the proposed protected action.

Transport Workers' Union of Australia v Border Express Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established