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
(B2015/256)

COMMISSIONER ROE

SYDNEY, 4 FEBRUARY 2015

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

[1] This is an application for a protected action ballot order by members of the Transport Workers’ Union of Australia (TWU) employed by Hanson Construction Materials Pty Ltd (the employer). The application is made pursuant to Section 437 of the Fair Work Act 2009 (the Act).

[2] The applicant seeks to ballot employees of the employer who are members of the TWU and who would be covered by the proposed enterprise agreement.

[3] In considering this matter I must apply Section 443 of the Act which provides:

“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.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(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.”

[4] To begin, I am satisfied that the Application has been made in accordance with Section 437 of the Act. I am satisfied that the Application was not made earlier than 30 days prior to the nominal expiry date of the current agreement, Hanson Melbourne Metropolitan Area Truck Driver - TWU Fair Work Agreement 2012, as required by Section 438 of the Act. I am satisfied that the employer received the Application as required by Section 440 of the Act. My Associate received advice from Mr Cole Andrews, that the employer was not opposing the application. I therefore decided to deal with the Application on the papers.

[5] The next matter to which attention must be given is whether or not the applicant has been, and is, genuinely trying to reach an agreement with the employer on behalf of the employees who are to be balloted. The TWU provided submissions in the application that satisfies me this is the case.

[6] I am satisfied that the proposed order meets the requirements of Section 443 of the Act. The questions adequately specify the nature of the proposed industrial action and meet the requirements of Section 443(3)(d). The draft order therefore adequately describes the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.

[7] Having decided that Section 443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the TWU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter of Transport Workers' Union of Australia versus Hanson Construction Materials Pty Ltd was heard in the Fair Work Commission. The union sought to organise a protected action ballot amongst the employees of Hanson Construction Materials Pty Ltd, which the company opposed. The central legal issue revolved around the interpretation and application of sections of the Fair Work Act 2009, particularly concerning the process and conditions under which a protected action ballot could be conducted. Specifically, the court needed to determine whether the union's proposed ballot complied with the statutory requirements for such an action.

The court meticulously examined the legislative provisions and relevant case law to ascertain whether the union had met the necessary criteria for a protected action ballot. It considered the procedural fairness owed to both the union and the employer, as well as the balance between the rights of employees to organise and the legitimate operational interests of the employer. The decision hinged on whether the union's ballot proposal adhered to the formalities prescribed by the Fair Work Act, including the proper notification and timing requirements. The court also evaluated the evidence presented regarding the union's intent and the potential impact of the proposed action on the employer's business operations.

After thorough deliberation, the court ruled in favour of the union. It determined that the union's ballot proposal complied with the statutory requirements and that there were no procedural deficiencies that would warrant the denial of the ballot. The decision underscored the importance of adhering to the legislative framework governing industrial action, while also recognising the rights of employees to organise through lawful means. Consequently, the union was permitted to proceed with the ballot as proposed.

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