Transport Workers' Union of Australia v Concrite Pty Ltd

[2022] FWC 1957

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Concrite Pty Ltd

(B2022/705)

VICE PRESIDENT CATANZARITI

SYDNEY, 25 JULY 2022

Proposed protected action ballot of employees of Concrite Pty Ltd

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 Concrite Pty Ltd (Respondent).

On 20 July 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Gregory John Leslie of the Applicant declared on 18 July 2022, 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 PR744153.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia (NSW Branch) sought an order from the Fair Work Commission for a protected action ballot of certain employees of Concrite Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, which pertains to protected action ballots. The Respondent, Concrite Pty Ltd, did not oppose the application. Consequently, the Vice President determined the matter on the papers without holding a hearing. The decision was based on the statutory declaration of Gregory John Leslie of the Applicant, which outlined the union's efforts in bargaining with the Respondent and confirmed that the union had been genuinely attempting to reach an agreement.

The legal issue before the Fair Work Commission was whether the union had fulfilled the statutory requirements to conduct a protected action ballot. This included verifying if there was a notification time in relation to the proposed agreement and whether the provisions of section 443(1) of the Act had been satisfied. The Vice President found that the union had met these requirements based on the material presented, which included the statutory declaration of the union representative.

Upon reviewing the statutory declaration and other relevant material, the Vice President concluded that the union had indeed satisfied the statutory prerequisites for a protected action ballot. The Vice President was satisfied that there was a notification time in relation to the proposed agreement and that the union had genuinely been attempting to reach an agreement with the Respondent. Therefore, the Vice President decided to grant the union's application for a protected action ballot.

The Fair Work Commission issued an Order in PR744153, allowing the Transport Workers' Union of Australia to proceed with the protected action ballot of the employees of Concrite Pty Ltd. This decision confirmed the union's eligibility to conduct the ballot and recognised the union's efforts in bargaining with the Respondent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established