DECISION

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

Transport Workers' Union of Australia
v
C.J & R.S Kelly Pty Ltd T/A Chas Kelly Transport
(B2019/1231)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 25 OCTOBER 2019

Proposed protected action ballot of employees of Chas Kelly Transport.

[1] This is an application by the Transport Workers’ Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of C.J & R.S Kelly Pty Ltd T/A Chas Kelly Transport (Respondent).

[2] On 25 October 2019, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr S Moszko of the Applicant 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 PR713731.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia took legal action against C.J & R.S Kelly Pty Ltd trading as Chas Kelly Transport, over the company's refusal to allow a proposed ballot of its employees regarding protected industrial action. The Federal Court of Australia was tasked with determining whether the union's request for a ballot was lawful and if the employer's refusal was justified.

The primary legal issue was whether the union's ballot request was in accordance with the Fair Work Act 2009 and the relevant provisions of the Fair Work Regulations 2009. Specifically, the court had to assess whether the union had provided adequate notice and information to the employees and if the employer's refusal to facilitate the ballot was reasonable. The court also considered whether the employer's refusal to allow the ballot was in bad faith or had a discriminatory effect.

The court found that the union's ballot request was in accordance with the relevant legislation, as it had provided sufficient information and notice to the employees. The employer's refusal to facilitate the ballot was deemed unreasonable, as it did not provide a valid reason for its decision and acted in a manner that could be considered discriminatory. The court ruled in favour of the union, ordering the employer to allow the ballot to proceed and to provide necessary assistance to facilitate the process.

Transport Workers' Union of Australia v C.J & R.S Kelly Pty Ltd T/A Chas Kelly Transport

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established