Transport Workers' Union of Australia v Hanson Construction Materials Pty Ltd

[2024] FWC 1359

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v

Hanson Construction Materials Pty Ltd

(B2024/572)

DEPUTY PRESIDENT ROBERTS

SYDNEY, 23 MAY 2024

Proposed protected action ballot of employees of Hanson Construction Materials Pty Ltd

This is an application by the Transport Workers’ Union of Australia (TWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Hanson Construction Materials Pty Ltd (Hanson or Employer).

The matter was listed for hearing on 23 May 2024 and the Commission was advised on that date that the Employer did not object to the application.

On the basis of the material before me, including the declaration of Charlie Nichols, Organiser, setting out the background to the bargaining process, the steps taken by the TWU in bargaining and evidence to indicate that the TWU has been, and is, genuinely trying to reach agreement with Hanson, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met. I am also satisfied that the application was provided to the employer and the ballot agent in accordance with s.440 of the Act

The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 5 June 2024. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR775295.

I will now conduct the s.448A compulsory conciliation conference. I will issue an Order requiring the attendance of all bargaining representatives for the proposed enterprise agreement at the conference. Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia has applied to the Fair Work Commission for a protected action ballot order concerning certain employees of Hanson Construction Materials Pty Ltd. The application was made under section 437 of the Fair Work Act 2009. The matter was heard on 23 May 2024, and the Commission was informed that Hanson Construction Materials Pty Ltd did not oppose the application. The ballot is intended to be conducted by Vero Engagement & Voting Solutions Pty Ltd, which has been approved as a ballot agent under section 468A of the Act.

The legal issues the court needed to address were whether the Transport Workers' Union had met all the requirements of section 443(1) of the Fair Work Act and whether the application had been properly served on the employer and the ballot agent as required by section 440 of the Act. The court had to determine if the notification time for the proposed agreement had been established and if the union had genuinely attempted to reach an agreement with the employer. Furthermore, the court had to ensure that the ballot would close on 5 June 2024 and that the ballot period was appropriately set for the purposes of section 448A(2) of the Act.

The Fair Work Commission found that all requirements for the application had been met. The declaration by Charlie Nichols, Organiser of the TWU, provided sufficient evidence to establish the background of the bargaining process and the union's efforts to reach an agreement with Hanson Construction Materials Pty Ltd. The application was appropriately served, and Vero Engagement & Voting Solutions Pty Ltd was authorised to conduct the ballot. Consequently, the court determined that the ballot period would close on 5 June 2024 and issued an order for a compulsory conciliation conference to ensure meaningful negotiations between the parties.

The final order mandated that all bargaining representatives attend the conciliation conference, ready to engage in meaningful negotiations. Additionally, the order established the closure date for the ballot at 5 June 2024. This decision ensures that the ballot process is conducted in accordance with the Fair Work Act, facilitating a transparent and legally compliant process for the employees of Hanson Construction Materials Pty Ltd.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established