Transport Workers' Union of Australia v CJ & RS Kelly Pty Ltd T/A Chas Kelly Transport

[2023] FWC 1030

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

CJ & RS Kelly Pty Ltd T/A Chas Kelly Transport

(B2023/392)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 3 MAY 2023

Proposed protected action ballot of employees of CJ & RS Kelly Pty Ltd Trading As Chas Kelly Transport

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 CJ & RS Kelly Pty Ltd (Respondent).

On 2 May 2023, my Associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Mr Steve 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.

An order has been separately issued in PR761536.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission recently considered an application by the Transport Workers’ Union of Australia for a protected action ballot order in relation to certain employees of CJ & RS Kelly Pty Ltd, trading as Chas Kelly Transport. The application was made under section 437 of the Fair Work Act 2009 and pertained to the proposed industrial action ballot. The respondent did not object to the application, leading the Deputy President to determine the matter on the basis of the submitted documentation without a hearing.

The primary legal issue for the court was whether the union had satisfied the conditions set out in section 443(1) of the Fair Work Act 2009, which includes the requirement for a notification period and demonstrating genuine efforts to reach an agreement with the employer. The court had to assess the declaration provided by Mr. Steve Moszko of the Applicant, which outlined the steps taken in bargaining with the employer and affirmed the union's genuine attempts to reach an agreement.

In reaching its decision, the Deputy President examined the declaration and found it satisfactory that the union had complied with the notification requirements and had genuinely endeavoured to negotiate with the employer. The evidence presented demonstrated that the union had taken appropriate steps and met the statutory criteria for the protected action ballot. Consequently, the court was satisfied that the conditions for the ballot order were met.

The court issued an order under the Fair Work Act 2009, allowing the Transport Workers’ Union of Australia to proceed with the protected action ballot as requested. This decision was documented in a separate order issued in PR761536. The determination underscores the importance of meeting statutory requirements and demonstrating genuine bargaining efforts when seeking to undertake protected industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established