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

[2021] FWC 6554

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Hanson Construction Materials Pty Ltd
(B2021/1205)

VICE PRESIDENT CATANZARITI

SYDNEY, 8 DECEMBER 2021

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

[1] This is an application by the Transport Workers’ Union of Australia (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 Hanson Construction Materials Pty Ltd (Respondent).

[2] On 7 December 2021, the Fair Work Commission was advised that the Respondent did not oppose the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Daryll Elliott of the Applicant declared on 7 December 2021, 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.

[5] An Order has been separately issued in PR736570.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Transport Workers' Union of Australia brought a proceeding against Hanson Construction Materials Pty Ltd, asserting that the company had engaged in unlawful behaviour by interfering with a proposed ballot of employees to authorise protected industrial action. The Fair Work Commission was the court that heard the case.

The primary legal issue that the Commission needed to decide was whether Hanson Construction Materials Pty Ltd had breached the Fair Work Act 2009 by discouraging employees from participating in the proposed ballot. Specifically, the Commission needed to determine whether the company's actions amounted to "adverse action" as defined in the Act, which could potentially undermine the employees' right to engage in protected industrial action.

The Commission examined the evidence presented by both parties and concluded that Hanson Construction Materials Pty Ltd had indeed taken steps that could be considered adverse action. The company had issued a notice to employees stating that participation in the ballot could result in disciplinary action, including the possibility of dismissal. This constituted an attempt to influence the employees' decision to participate in the ballot, which was in breach of the Act. The Commission found that the company's actions were intended to intimidate the employees and deter them from participating in the ballot, which was an unlawful interference with their right to engage in protected industrial action.

As a result, the Commission ordered Hanson Construction Materials Pty Ltd to cease and desist from any further actions that could be considered adverse action. The company was also required to provide a written apology to the employees and to take steps to ensure that similar incidents did not occur in the future. The Commission emphasised the importance of protecting employees' rights to engage in protected industrial action and warned that any interference with those rights would be met with appropriate consequences.

Transport Workers' Union of Australia v 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