Transport Workers' Union of Australia v DRW Investments Pty Ltd T/A Wettenhalls

[2017] FWC 2587

[2017] FWC 2587

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
DRW Investments Pty Ltd T/A Wettenhalls
(B2017/317)

COMMISSIONER GREGORY MELBOURNE, 11 MAY 2017

Proposed protected action ballot of employees of DRW Investments Pty Ltd trading as Wettenhalls.

Introduction

[1] The Transport Workers’ Union of Australia (“the TWU”) has made an application for a protected action ballot order under s.437 of the Fair Work Act 2009 (Cth) (“the Act”) in respect of its members employed by DRW Investments Pty Ltd T/A Wettenhalls (“Wettenhalls”). The business services various markets in different States and its employees are primarily employed as drivers involved in both interstate line haul work and local deliveries.

[2] Wettenhalls subsequently advised that it opposed the application and it was accordingly set down for hearing. It also provided the Commission with a written outline setting out its grounds of objection. They are in summary:

• the TWU is not “genuinely trying to reach agreement” as required by s.443(1)(b) of the Act;



• the second of the four questions to be put to the employees in the proposed ballot is uncertain and therefore cannot comply with s.437(3) of the Act as it does not specify in sufficient detail “the nature of the proposed industrial action”; and



• in the event that the Commission decides an order should be made there are “exceptional circumstances” existing to warrant a 7 day notice period being provided for, instead of the minimum period of at least 3 working days specified in s.414(2)(a) of the Act.

[3] Mr Luke McCrone appeared on behalf of the TWU. The CEO of Wettenhalls, Mr Mike Lean, appeared on its behalf.

The Issue to Be Determined

[4] The issues to be determined have been referred to above. They concern the following provisions in the Act:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

……………………..

437 Application for a protected action ballot order

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

…………………….

414 Notice requirements for industrial action

Notice requirements - employee claim action

(1) Before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

(2) The period of notice must be at least:

(a) 3 working days; or

(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph that period of notice.” 1

The Submissions and Evidence

1. “Not genuinely trying to reach agreement”

[5] Wettenhalls submits the application is “premature” 2 and the Commission cannot be satisfied at this point that the TWU is “genuinely trying to reach agreement” as required by s.443(1)(b). Its written submission indicates that bargaining for a new Agreement was initially put on hold, by agreement, because at the time the business was involved in re-tendering for one of its major contracts. However, once this process was concluded the negotiations reconvened in September last year.

[6] Wettenhalls continues to submit that since that time there have been 9 meetings between the parties. In addition, a proposed Agreement was put to a vote of employees on 7 April 2017, however, it was not approved in that ballot. Further discussions have since taken place between the parties and, “At this point in time, the Company remains engaged positively in the bargaining process and we consider that a Protected Action Ballot application at this time is premature.” 3 A further meeting with the Union was scheduled for 19 April 20107, however, the present application was then lodged. It submits that as a consequence there has been no meaningful opportunity to discuss what should now occur, however, there is no current “impasse in relation to their bargaining positions.”4 It also submits that a further list of demands has since been provided by the Union which the business is now required to respond to.

[7] It continues to submit that the onus is on the TWU to establish that it is genuinely trying to reach agreement, however, the Union’s position has been inconsistent at different times in the negotiating process, which has made it difficult to narrow down the issues in dispute. It also submits that all possible avenues should first be explored before the TWU contemplates the option of protected industrial action.

[8] Wettenhalls also makes reference in its submission to the Full Bench decision in Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368, and to the following extract from that decision:

“ … At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.” 5

[9] It also makes reference to the decision in Construction, Forestry, Mining and Energy Union v Brookfield Multiplex Australasia Pty Ltd [2012] FWA 3374.

[10] The TWU in the statutory declaration it provided in support of the application sets out the dates of the 9 meetings that have taken place during the course of the negotiations since the initial meeting on 12 September 2016. It also notes that at the time of making application a further meeting with the business was scheduled for 19 April 2017. There have also been numerous report back meetings to members throughout the negotiation process.

[11] It also indicated in its oral submissions that its claims have been clear and understood throughout the negotiation process. There has also been agreement reached about a number of matters during the course of the negotiations to date. These have included claims pursued by the Union, and matters raised in the negotiations by Wettenhalls. The TWU concluded by indicating that the negotiations, and the way in which they have been conducted, make clear that at all times it has been genuinely trying to reach agreement in a negotiation process that has now extended over more than 8 months.

2. The second question to be put to the employees in the ballot is uncertain

[12] The question at issue in this context is as follows:

“Work bans – Employees will refuse to perform part of their usual work duties.”

[13] Wettenhalls submits the questions to be put need to be formulated with sufficient clarity to enable employees to make an informed decision about the nature of the proposed industrial action they are voting on, and how this action will occur. In its submission question 2 is uncertain and does not enable the employees to be able to meaningfully understand what action they are actually considering in the ballot because it is unclear what is meant by refusing “to perform part of their usual work duties.” It continues to submit that the transport industry is highly regulated and it is possible that if employees refuse to perform part of their usual work duties they may be in breach of the various safety and other regulatory obligations they are required to comply with.

[14] The TWU submits, in response, that it is well aware of the safety and other regulatory obligations that employers and employees must comply with. As a consequence it would not propose that employees take any form of protected industrial action that leads them to refuse to perform work duties they are required to carry out as a consequence of these obligations.

[15] It also submits that a question in the same terms as now set out in question 2 has been included in a number of previous protected action ballot orders. In addition, it submits that previous Commission decisions, which have considered the legitimacy of similar questions, have concluded that they are appropriate to be included in those put in a protected action ballot.

3. In the event that an order is made it should provide for a 7 day notice period

[16] Wettenhalls submits that if the application is granted, and an order is made, it should provide that the written notice period required to be given by the TWU, before commencing to take protected industrial action, be extended from the minimum period of at least 3 working days to 7 working days in accordance with the discretion contained in s.443(5) of the Act. It relies on several matters in support of its submission that “exceptional circumstances” 6 exist to justify this extended notice period. It refers, in particular, to the following matters:

• It does not have a large pool of casual drivers to draw upon if its existing drivers withdraw their services as part of any protected industrial action.



• Its existing drivers are not inducted across all customer sites. Each site requires specific site inductions before a driver can enter or deliver to the site. It generally takes longer than 3 days to be able to have a new driver attend and complete the requisite induction process at each different customer location.



• Similarly, some drivers who are delivering to the waterfront are required to have obtained a maritime security identification card. These take between 1 and 2 weeks to obtain. If indefinite stoppages occur as part of any protected industrial action it may be difficult to have drivers obtain the card in sufficient time.



• If casual labour is required to cover for employees taking protected industrial action they must also go through necessary induction processes. This can require specific in-cabin assessments and additional training to ensure they are competent to carry out the requisite tasks. A 7 day notice period would again assist in enabling this to occur.



• It would have a particular impact on the project work it carries out in its construction services division, given the demands that work imposes from time to time.

[17] The TWU submits, in response, that none of the circumstances referred to by Wettenhalls in its submissions constitute “exceptional circumstances.” They are instead circumstances routinely and normally encountered by any business operating in the transport industry. It also submits that the scheme of the legislation contemplates that industrial action, taken as part of the bargaining process, will inevitably cause some disruption and potentially impact upon customers and other third parties.

[18] It also submits that it is aware of the potential impact on the business that some forms of protected industrial action can have, and it would be concerned to ensure that this impact is limited, as far as possible, in terms of customers of the business. It would instead seek to focus the impact of any protected industrial action on the business itself, rather than on its customers.

[19] It also indicated in response to a question from the Commission that the only circumstances in which it understands the Commission has been prepared to provide for an additional notice period in a matter involving the transport industry has concerned armoured vehicle operations and the particular circumstances involved in the transport and handling of money.

Consideration

[20] Wettenhalls has raised three matters in response to the application by the TWU for a protected action ballot order. In doing so it is understandably motivated by a desire to limit the impact of any protected industrial action on the business, and on the services it provides to its customers. It is also concerned to ensure that appropriate safety standards are maintained, and that the business and its employees continue to comply with their regulatory obligations. These concerns are acknowledged and understood. However, it is also clear that the Act provides that employees can, in certain circumstances, take protected industrial action as part of the process of bargaining and negotiation in regard to the making of a new enterprise agreement, and that this will inevitably cause disruption to normal business operations. I now turn to deal with the application and the issues raised in response by Wettenhalls in the context of the legislative framework and the authorities that are relevant to the determination of this matter. It is also noted that in dealing with the application neither party provided any additional evidence in support of their respective positions, and relied instead on their written submissions and the additional oral submissions provided during the course of the hearing.

1. “Not genuinely trying to reach agreement”

[21] Wettenhalls principal submission is that the application should not be granted at this time because it is premature, given the current state of the negotiations. It continues to submit that the TWU is accordingly not in a position to satisfy the Commission that it has been or is genuinely trying to reach agreement as required by s.443(1)(b). The TWU refers in response to its initial claims, and the number of meetings held to date as part of the negotiating process, as well as the progress made in those negotiations toward concluding a new Agreement.

[22] The approach to be applied in dealing with the requirements contained in s.443(1)(b) has been considered in a number of previous decisions of the Tribunal. The Full Bench decision in John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2010] FWAFB 526 makes clear that the Applicant carries the burden of proof of establishing that they are genuinely trying to reach agreement. The decision in J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia [2010] FWAFB 9963 also determined that where an Applicant calls acceptable evidence then the evidentiary onus shifts to the party opposing the application.

[23] The more recent Full Bench decision in Coles Supermarkets (Australia) Pty Ltd v Australasian Meat Industry Employees Union [2015] FWCFB 379 also concluded that the legislative provisions contain two distinct considerations. The reference, firstly, to “is genuinely trying to reach an agreement” requires satisfaction that at the time of the determination the Applicant is genuinely trying to reach an agreement. However, the reference to “has been genuinely trying to reach an agreement” also require satisfaction that the Applicant had been trying to reach an agreement prior to the time of the determination. In addition, the decision also makes clear that the reference to “has been” is not restricted to the time that the application is made.

[24] It is also been established that the words “genuinely trying” are to be given their ordinary and natural meaning, and this requires an assessment of the particular circumstances involved in each case. The Full Bench decision in Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368, which was also referred to in the submissions provided by Wettenhalls, also makes clear that sufficient steps need to be taken in order to satisfy the test. The Full Bench continued to indicate:

“[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. 2 It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.

[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.” 7

[25] The statutory declaration provided by the TWU in support of the application details the various meetings that have been held over the past 7/8 months as part of the negotiating process. Wettenhalls does not take issue with this chronology. On 7 April 2017 Wettenhalls put a draft agreement to a vote of employees, but it was not approved in the ballot. The respective submissions of both parties now indicate that each is trying to recast their negotiating position in the light of this outcome. The submissions also make clear that the parties have not to date been able to get a position where they are able to conclude a mutually agreed outcome. However, I am not satisfied that it can be concluded, against this background, that the TWU has not been, or is not, genuinely trying to reach an agreement. The submissions and evidence suggest instead that the TWU made clear to Wettenhalls at the commencement of the negotiations in its original set of claims what was the general scope of the matters about which agreement was sought. Wettenhalls, in turn, responded to these claims and foreshadowed various changes that it was also wanting to achieve as an outcome from the negotiations. Since that time the parties have been involved in a protracted process of negotiations with the intention of trying to get to a position both could agree upon.

[26] Wettenhalls also submits that taking protected industrial action should be a last resort option when all other avenues have been exhausted. Its desire to avoid the possibility of industrial action being taken is again understood, given the potential implications for the business, which clearly operates in a challenging trading environment. However, there is nothing in the Act or in decisions of the Tribunal that suggest that protected industrial action is to be a last resort option only. I am satisfied instead that the decision in Total Marine Services, which has been referred to previously, sets out the required preconditions that need to be found to exist.

[27] I am satisfied in conclusion that in all the circumstances of this matter the TWU has been, and is, genuinely trying to reach agreement. While the process of negotiation has not yet got to the point of concluding an agreement there is nothing to suggest that the TWU has any other intention in terms of what s.443(1)(b) requires.

2. The second question to be put to the employees in the ballot is uncertain

[28] The issues associated with the form of question(s) to be put in a protected action ballot have also been considered in a number of decisions of this Commission and it predecessors. The Full Bench decision in John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 8 dealt with several grounds of appeal, including that the application was invalid because the question to be put was ambiguous, and did not adequately specify the nature of the industrial action for which the endorsement of the employees was sought in the ballot.

[29] The Full Bench noted, firstly, that an application under s.437 is only the first step in a process leading to the possible initiation of protected industrial action. It referred to other sections of the Act which might be relevant, including ss.409, 413 and 414. It continued to state at paragraph 16:

“We draw attention in particular to the requirement for notice in ss.414(1) and (6). If the action specified in the notice is not authorised by the relevant ballot, any action taken pursuant to the notice will not be protected industrial action. For this reason there will be a natural tendency for bargaining representatives to frame ballot questions in a way which minimises the possibility that the industrial action eventually taken will fall outside the action authorised by the ballot. If the ballot questions describe industrial action in a general way it might subsequently be held that specific types of industrial action were not authorised. No doubt, for that reason, a number of bargaining representatives have drafted ballot applications containing very detailed questions.” 9

[30] It then examined the intent of s.437 and concluded at paragraph 19:

“Moving now to the construction of s.437 itself, seen in its statutory context, all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.” 10

[31] The decision in John Holland was adopted by Deputy President Smith in Australian Education Union v The State of Victoria (Department of Education and Early Childhood Development) 11 in a matter that involved a different form of question. It proposed a variety of forms of proposed action described in a single sentence followed by a single “Yes/No” answer. The question was as follows:

“In support of reaching an enterprise agreement, do you endorse taking protected industrial action in the form of an unlimited number of State wide or Regional or Sub Branch stoppages of work of 1 to 24 hours in duration or bans or limitations on the manner in which work is undertaken?” 12

[32] Deputy President Smith indicated at paragraph 13 of the decision:

“I do not doubt that the phrase bans or limitations on the manner in which work is undertaken would be well understood by teachers. Indeed, such language is very similar to that used by the Act (s.19) which provides the gateway for other action to be taken by the employer. These are experienced industrial parties and this path, upon which they are about to embark, is not novel.” 13

[33] Deputy President Smith concluded that the appropriate course was to follow the decision in John Holland. It is evident from these authorities that in most cases the nature of the question or questions to be put in a protected ballot application will be a matter for the Applicant to determine, provided the plain meaning of the words can be understood.

[34] In addition, the open-ended reference to employees refusing “to perform part of their usual work duties” in question 2 in the present matter is not dissimilar to the reference to “the manner in which work is undertaken” dealt with in the decision of Deputy President Smith. Again, Wettenhalls concerns about the need to adhere to appropriate safety and other regulatory requirements is understood and accepted. It is also noted that the TWU has acknowledged in its submissions that Wettenhalls has a strong and demonstrated commitment to workplace health and safety. It also indicated in its submissions that it would not intend to propose any form of protected industrial action that would impact upon safety, or any other regulatory obligations that the business and its employees are required to comply with.

[35] I am satisfied, in conclusion, that question 2 does adequately specify the industrial action for which the endorsement of employees is sought. Those employees can be assumed to understand what are “their usual work duties.” They can also be presumed to understand what regulatory obligations they are required to comply with. It follows that it is reasonable to conclude that they are also able to understand what a refusal “to perform part of their usual work duties” intends.

[36] In addition, in the future in the event that Wettenhalls is of the view that any industrial action proposed to be taken as a consequence of a protected action ballot order extends beyond the scope of the ballot, then it would be open to it to make application in response on the basis that the action cannot be considered to be protected industrial action.

3. If an order is to be made it should provide for a 7 day notice period

[37] The decision in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation 14 is often cited as the relevant authority in terms of considering whether “exceptional circumstances” exist to justify an extension of the minimum 3 working day period provided for in s.414(2). The decision was concerned with similar provisions in the Workplace Relations Act 1996 and involved submissions by the Respondent that the notice period should be extended to 7 days because of the potential consequences stemming from the disruption of postal services.

[38] The Vice President indicated in his decision:

“In this passage his Honour was concerned with the ordinary meaning of the expression “exceptional circumstances” and the approach identified is, in my view, equally applicable to the use of that expression in s.465(3). In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 15

[39] He continued to indicate that it was not just a question of whether those exceptional circumstances exist, but whether they justify an extension of the required notice period:

“There must be exceptional circumstances “justifying” the specification of a longer notice period. The notion of justification is critical and calls for a consideration of the purpose of the notice required by s.441.” 16

[40] He suggested this involved a weighing of the respective interests, stating at paragraph 21:

“Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notices period is a weighing of the interests of the employer and third parties in the employer having a greater opportunity to take appropriate defensive action as against the diminution in the effectiveness of the employees’ bargaining power that results from such an extension. The fact that the legislature has seen fit to condition the ordering of an extension of the required notice period on the presence of exceptional circumstances justifying it, as distinct from merely conferring a simple discretion to extend the required notice period, indicates that ordinarily there should be no extension.” 17

[41] He finally concluded that “exceptional circumstances” existed as a consequence of the potential disruption to mail services, but concluded that they did not justify an extension of the written notice period. 18

[42] Other decisions of the Tribunal have made clear that the Commission has been prepared to extend the notice period in a variety of different circumstances. The extended notice periods have varied in length, and in some cases have been limited to certain types of industrial action only.

[43] Wettenhalls relies on various grounds in support of an additional notice period being provided. These include its limited access to replacement casual drivers, and the problems associated with replacement employees being inducted at the different sites they are required to deliver to, as well as having the requisite accreditations when transporting goods to or from the wharves. It also highlights concerns about the impact on its contracts with customers if industrial action causes disruption to the services it provides to those customers. It makes these submissions against the background of what it submits have been significant financial difficulties experienced by the business in the recent past, and the challenging trading environment it now operates in.

[44] The TWU essentially submits in response that these concerns are no different to those likely to be faced by any transport company in similar circumstances. It also submits that the scheme of the Act intends that protected industrial action, taken as part of a bargaining process, will inevitably cause some disruption to the employer, and to its business operations.

[45] Wettenhalls desire to have an extended notice period in place is clearly understood. It wants to be able, as far as possible, to minimise the impact of any future industrial action on the business and on the services it provides to its customers. It also wants to ensure that at all times it is complying with its obligations in regard to health and safety, and with the range of other regulatory obligations it is required to comply with. However, as the TWU makes clear in its submissions, the scheme of the Act contemplates that industrial action, taken as part of a bargaining process, will inevitably cause some disruption to the business and potentially impact upon customers and other third parties.

[46] In addition, it is likely that action to respond to the issues to do with the availability of casual drivers, obtaining relevant accreditations, and having drivers inducted at different customer sites, can already now be planned for and initiated in response to the application by the TWU.

[47] Having had regard to the authorities referred to, and to the circumstances involved in this matter, I am unable to conclude that the circumstances described in the submissions provided by Wettenhalls can be said to be “out of the ordinary course, or unusual, or special.” This is not to make light of their potential impact, but they do instead appear to be circumstances which would be routinely or normally encountered by a business involved in the transport industry. In addition, there is nothing to suggest that the impact of any future industrial action is going to extend in any significant way beyond the business, and the customers that it services. For example, there is no suggestion of any wider impact upon a broad section of the population, or upon the economy more generally.

[48] Section 443 of the Fair Work Act 2009 provides that I must make an order if an application has been made under section 437 and the Commission is satisfied the Applicant is genuinely trying to reach agreement. I am satisfied that the TWU is a bargaining representative of employees sought to be covered by the proposed agreement. I am also satisfied that the TWU is genuinely trying to reach agreement. The application also specifies the group of employees to be balloted and the questions to be put, including the nature of the proposed action. I am also satisfied that s.440 of the Act has been satisfied. I accordingly propose to make an order in the terms sought by the TWU. That order will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

L McCrone for the Transport Workers’ Union of Australia.

M Lean for DRW Investments Pty Ltd T/A Wettenhalls.

Hearing details:

2017.

Melbourne:

May 4.

 1   Fair Work Act 2009 (Cth).

 2 Respondent’s Outline of Submissions, dated 2 May 2017, at [5].

 3 Ibid at [13].

 4 Ibid at [14].

 5   Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368 at [32].

 6   Fair Work Act 2009 (Cth) s 443(5).

 7   Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368 at [31]-[32].

 8   [2010] FWAFB 526.

 9 Ibid at [16].

 10 Ibid at [19].

 11   [2012] FWA 3729.

 12 Ibid at [3].

 13 Ibid at [13].

 14   [2007] AIRC 848.

 15 Ibid at [10].

 16 Ibid at [11].

 17 Ibid at [21].

 18 Ibid at [33].

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