Transport Workers' Union of Australia v Cockburn Cement Limited

[2024] FWC 1311

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Cockburn Cement Limited

(B2024/559)

DEPUTY PRESIDENT BEAUMONT

PERTH, 17 MAY 2024

Proposed protected action ballot of employees of Cockburn Cement Limited

This is an application by the Transport Workers' Union of Australia (TWU or Applicant) made under s 437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Cockburn Cement Limited (CC or Employer).

I note that the Australian Workers’ Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union have each made a separate application for a protected action ballot order in relation to the same proposed agreement.[1]

On 17 May 2024, the Commission was advised that the Employer 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 Christopher Nelson, Organiser, setting out the steps taken by the TWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with CC, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s 443(1) of the Act have been met.

The ballot is to be conducted by Vero Engagement &Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s 468A of the Act and consequently is authorised to conduct the ballot.
For the purposes of s 443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 30 May 2024.[2] This also establishes the ballot period for the purpose of s 448A(2) of the Act.

An Order has been separately issued in PR775145.

A s 448A compulsory conciliation conference along with the other related matters (B2024/545, B2024/554 and B2024/551) will be listed. To the extent that this matter involves any additional bargaining representatives, an Order will issue requiring their attendance at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

Matter determined on the papers.

[1] B2024/545, B2024/551, B2024/554.

[2] This is, in effect, no later than nine (9) working days from the date of the Order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia sought a protected action ballot order for its members employed by Cockburn Cement Limited under section 437 of the Fair Work Act 2009. The application was brought before the Fair Work Commission, with Deputy President Beaumont presiding over the case in Perth on 17 May 2024. The Australian Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, along with the Australian Manufacturing Workers’ Union, had also applied for a ballot order in relation to the same proposed agreement. Cockburn Cement Limited did not object to the Transport Workers' Union's application.

The legal issues before the court involved determining whether the notification time for the proposed agreement had been met, and whether all the requirements under section 443(1) of the Fair Work Act 2009 had been satisfied. The court had to consider the steps taken by the Transport Workers' Union in bargaining with Cockburn Cement Limited and assess whether the union had genuinely tried to reach an agreement with the employer. Furthermore, the court had to decide on the closing date for voting in the ballot, as per section 443(3)(c) of the Act.

Deputy President Beaumont concluded that the notification time in relation to the proposed agreement had been met, and all the requirements under section 443(1) of the Act had been satisfied. Vero Engagement & Voting Solutions Pty Ltd, an approved agent under section 468A of the Act, would conduct the ballot. The court determined that the voting period would close on 30 May 2024, establishing the ballot period for the purpose of section 448A(2) of the Act. An order was issued separately in PR775145. A compulsory conciliation conference would be listed along with the other related matters (B2024/545, B2024/554, and B2024/551). An order would also be issued requiring the attendance of any additional bargaining representatives at the conference, with directions likely to be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established