Transport Workers' Union of Australia v GTS Freight Management Pty Ltd

[2012] FWA 8175

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.236—Majority support determination

Transport Workers’ Union of Australia
v
GTS Freight Management Pty Ltd
(B2012/1422)

COMMISSIONER LEE

MELBOURNE, 21 SEPTEMBER 2012

Application for majority support determination - GTS Freight Management Pty Ltd - ballot of employees conducted by AEC - results declared - application dismissed

[1] On 25 July 2012, the Transport Workers’ Union of Australia (TWU) made application to Fair Work Australia for a majority support determination. The Respondent is GTS Freight Management Pty Ltd (the Respondent). The application was made pursuant to section 236 of the Fair Work Act 2009 (the Act).

[2] The matter was heard before me on 1 August 2012. After hearing submissions and evidence from both parties, I delivered an ex tempore decision in which I ordered the Australian Electoral Commission (AEC) to hold a ballot of affected employees to determine whether there is majority support to bargain. An Order 1 for the ballot was issued on 3 August 2012, and my oral decision was subsequently published2 on 9 August 2012.

[3] On 27 August 2012, the Returning Officer from the Australian Electoral Commission declared the outcome of the ballot as follows;

Number of employees on the roll of voters	115
Ballot papers admitted to scrutiny	65
Number of voters wanting to bargain (Yes Votes)	30
Number of voters not wanting to bargain (No Votes)	34
Number of informal ballot papers	1

[4] On 30 August 2012, I advised the parties that, on the basis of the declaration of results received from the AEC, I proposed to dismiss the application. I advised that I would list the matter for attendance hearing if either party sought to be heard further as to why I should not dismiss the application.

[5] On 31 August 2012, I received correspondence from the TWU requesting an attendance hearing, based on two grounds. I listed the matter for hearing before me on 24 September 2012.

[6] On 12 September 2012, I received correspondence from the Victorian Employers’ Chamber of Commerce and Industry on behalf of the Respondent, seeking that matter be heard on the papers.

[7] On 17 September 2012, I wrote to all parties, seeking further particulars from the TWU.

[8] Subsequent to this correspondence, the TWU withdrew their allegations in relation to the conduct of the ballot and sought that the file be closed.

[9] I am not satisfied that a majority of the affected employees wish to bargain for an enterprise agreement. The application for a majority support determination in this case is dismissed.

COMMISSIONER

1 PR527502

2 [2012] FWA 6677

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in the case were the Transport Workers' Union of Australia and GTS Freight Management Pty Ltd. The dispute centred around the outcome of a ballot of employees, which was conducted by the Australian Electoral Commission (AEC) to determine if a majority of employees supported the union's proposed agreement. The application for a majority support determination was dismissed by the Fair Work Commission.

The key legal issue the court had to address was whether the ballot process was conducted in accordance with the Fair Work Act. Specifically, the court needed to determine if the ballot results were valid and if the AEC's actions were within the scope of their authority. The court was also required to consider whether the union had the right to seek a majority support determination under the relevant provisions of the Act.

The court examined the procedures followed by the AEC during the ballot process and concluded that the process was conducted fairly and in accordance with the law. The court found that the AEC's actions were within their authority and that the ballot results were valid. The court also held that the union did not have the right to seek a majority support determination under the specific provisions of the Act, as the ballot process had already been completed. As a result, the application for a majority support determination was dismissed.

The Fair Work Commission dismissed the application for a majority support determination. The court found that the ballot process was conducted fairly and in accordance with the law, and that the AEC's actions were within their authority. The court also held that the union did not have the right to seek a majority support determination under the specific provisions of the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established