DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Grace Worldwide (Australia) Pty Ltd T/A Grace Removals Group
(B2017/1056)

DEPUTY PRESIDENT BULL

PERTH, 9 NOVEMBER 2017

Proposed protected action ballot of employees of Grace Worldwide (Australia) Pty Ltd.

[1] On 6 November 2017, an application pursuant to s.437 of the Fair Work Act 2009 (theAct) was filed by the Transport Workers’ Union of Australia (TWU/applicant) for a protected action ballot order in relation to certain employees employed by Grace Worldwide (Australia) Pty Ltd T/A Grace Removals Group (Grace Removals/respondent).

[2] The employees to be balloted are members of the TWU employed in the classifications to be covered by the proposed agreement by the employer in the State of Western Australia, who will be subject to the proposed agreement and for whom the TWU is a bargaining agent.

[3] In support of its application, the F34B Statutory Declaration made by Mr Jason Walters (signed 3 November 2017), WA Lead Organiser for the TWU, advised that the current enterprise agreement – Grace Removals Group (WA Operations) Agreement 2014 expired on 30 June 2017.

[4] Mr Walters stated that since the commencement of negotiations for a new enterprise agreement, meetings have taken place between the TWU and representatives of the respondent on 3 November 2016, 5 April 2017, 26 April 2017, 17 May 2017, 31 May 2017 and 18 September 2017.

[5] Mr Walters stated that the respondent issued a document to the employees dated 29 August 2017 stating it will offer employees wage increases of 1% per year. A meeting of TWU members occurred on 26 October 2017 where the respondent’s offer was discussed, however the respondent’s offer was rejected by the members.

[6] Despite the negotiations between the parties no agreement has been reached, with there being outstanding issues relating to annual wage increases and the inclusion of current terms in the new agreement.

[7] By way of email dated 9 November 2017, Mr James Noakes on behalf of the respondent advised that Grace Removals do not oppose the TWU application.

[8] Under s.437 of the Act, a bargaining representative of an employee who will be covered by a proposed enterprise agreement may apply to the Commission for an Order requiring a protected action ballot to be conducted (within a specified period) to determine whether employees wish to engage in particular protected industrial action for the agreement.

[9] The specific terms of s.443 are extracted below:

443 When FWC must make a protected action ballot order

(1) 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) 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) 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).

(My underline)

[10] The legislation as expressed at s.443(1) requires that the Commission must make a protected action ballot order if satisfied the applicant has been, and is, genuinely trying to reach an agreement with the employer.

[11] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the TWU as stated in Mr Walters’ statutory declaration, that the TWU has been and is, genuinely trying to reach an agreement with the respondent. There was nothing put to question the bona fides of the TWU’s claim to be genuinely trying to reach an agreement with the respondent.

[12] Having regard to the evidence before me, I am satisfied that the requirements in s.443(1) of the Act have been met and an order [PR597555] based on the draft provided by the TWU is issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Transport Workers' Union of Australia sought a declaration that a proposed industrial action ballot of employees of Grace Worldwide (Australia) Pty Ltd was not protected action, and the respondents sought a declaration that it was. The applicants submitted that the proposed ballot was not protected action because it did not relate to a dispute of interest, as required by section 697 of the Fair Work Act 2009 (Cth). The respondents contended that the proposed ballot was protected action because it related to a dispute of interest. The question before the court was whether the proposed ballot related to a dispute of interest. The court found that the proposed ballot did not relate to a dispute of interest. The proposed ballot did not seek to achieve a term of the employees' employment, and the ballot did not seek to improve the terms of the employees' employment. Rather, the ballot sought to determine whether the employees would support industrial action in response to an employer-initiated change to the employees' conditions of employment. The proposed ballot was therefore not protected action. The court made a declaration that the proposed ballot was not protected action.

Transport Workers' Union of Australia v Grace Worldwide (Australia) Pty Ltd T/A Grace Removals Group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established