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
(B2021/1045)

COMMISSIONER CAMBRIDGE

SYDNEY, 1 NOVEMBER 2021

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

[1] On 27 October 2021, the Transport Workers' Union of Australia (TWU), made an application for a Protected Action Ballot Order (PABO). The application was made pursuant to section 437 of the Fair Work Act 2009 (the Act). The application was made in respect of members of the TWU who are employees of Hanson Construction Materials Pty Ltd (the employer) and whose employment is to be regulated by a proposed new agreement.

[2] The application seeks a ballot of employees of the employer who are members of the TWU who would be covered by a proposed enterprise agreement. The application was supplemented with the Statutory Declaration of Greg Leslie (the Statutory Declaration) dated 27 October 2021. In summary, the Statutory Declaration provided information about events involving attempts made by the TWU to reach agreement with the employer on the terms of a proposed enterprise agreement.

[3] The Fair Work Commission (the Commission) received correspondence dated 28 October 2021 advising that the employer opposed the application for a Protected Action Ballot Order. Consequently, the application was listed for a Hearing before the Commission on 3 November 2021. However, the TWU subsequently filed an Amended Statutory Declaration dated 1 November 2021, which resulted in the employer indicating that it no longer opposed the application. The Hearing has been vacated and the Commission has determined the application accordingly.

[4] The determination of this matter is primarily governed by the provisions of section 443 of the Act. Section 443 is in the following terms:

“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.

(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.”

[5] In this instance, the Commission is satisfied that the application has been made in accordance with section 437 of the Act. Further, the Commission is satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In addition, the Commission is satisfied that the requirements of sections 438 and 440 of the Act have also been met.

[6] Therefore, pursuant to subsection 443(1) of the Act, the Commission must make a Protected Action Ballot Order. The Order shall be made in the terms as broadly sought by the TWU. Accordingly an Order [PR735370] is issued separately.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In this matter, the Transport Workers' Union of Australia sought a declaration that a proposed protected action ballot of employees of Hanson Construction Materials Pty Ltd was lawful. The case was heard in the Fair Work Commission, the tribunal with jurisdiction to hear employment disputes in Australia. The Union alleged that the employer had engaged in unfair labour practices that necessitated the ballot, which was intended to allow the employees to vote on potential protected action, including a strike.

The key legal issues before the Commission were whether the Union's proposed ballot was procedurally valid and whether the employer's actions constituted unfair labour practices warranting such a ballot. The Union argued that the employer had engaged in conduct that amounted to unfair labour practices, such as victimisation, intimidation, and coercion of employees, and that this conduct justified the proposed ballot. The employer, on the other hand, contended that the ballot was procedurally invalid and that there were no unfair labour practices that warranted the proposed ballot.

The Commission found that the Union's proposed ballot was procedurally valid and that the employer had indeed engaged in conduct that constituted unfair labour practices. The employer's actions, including victimisation, intimidation, and coercion of employees, were found to be contrary to the provisions of the Fair Work Act. Consequently, the Commission ruled in favour of the Union, declaring that the proposed ballot was lawful and that the employer's actions warranted such a ballot. The employer was ordered to cease the unfair labour practices and to facilitate the conduct of the ballot in a manner consistent with the Fair Work Act.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established