Transport Workers' Union of Australia v Comdain Gas (Aust) Pty Ltd Comdain Services Pty Ltd

[2023] FWC 95

The attached document replaces the document previously issued with the above code on 13 January 2023.

All references to “T/A Comdain Infrastructure” are deleted.

Associate to Deputy President Clancy

17 January 2023

[2023] FWC 95

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia

Comdain Gas (Aust) Pty Ltd
Comdain Services Pty Ltd

(B2023/27)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 17 JANUARY 2023

Proposed protected action ballot of employees of Comdain Gas (Aust) Pty Ltd and Comdain Services Pty Ltd.

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 Comdain Gas (Aust) Pty Ltd and Comdain Services Pty Ltd (Respondent).

On 13 of January 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 Darren McColley 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 PR749635.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia (Applicant) made an application to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Comdain Gas (Aust) Pty Ltd and Comdain Services Pty Ltd (Respondent). The application was for a ballot to be held to allow the employees to vote on whether or not to take protected industrial action. The Respondent did not object to the application, and the matter was determined on the papers without a hearing.

The legal issue before the Court was whether the requirements of section 443(1) of the Act had been met, which requires the union to have genuinely tried to reach agreement with the employer. The Court was satisfied that the union had met this requirement based on the material before it, including the declaration of Mr. Darren McColley of the Applicant setting out the steps taken by the union in bargaining with the Respondent.

The Court determined that there was a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the Act had been met. An order was issued in PR749635 for a protected action ballot to be held.

This decision highlights the importance of the union genuinely trying to reach an agreement with the employer before taking protected industrial action. The Court was satisfied that the union had met this requirement, and the order for a ballot was granted.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established