DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v
Hanson Construction Materials Pty Ltd T/A Hanson
(B2020/719)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 16 NOVEMBER 2020

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

[1] This is an application lodged on 13 November 2020 by the Transport Workers’ Union of Australia (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Hanson Construction Materials Pty Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent confirmed it did not object to 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 Jason Walters of the Applicant lodged 13 November 2020, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[6] The Applicant sought a ballot period of “within 25 working days from the date of the order”. Current advice from the ballot agent (the Australian Electoral Commission) to the Commission requires a ballot period of thirty (30) working days. Accordingly the order in this matter will reflect this protocol.

[7] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR724583

CaseChat Overview and Summary

The case involved the Transport Workers' Union of Australia, acting on behalf of employees of Hanson Construction Materials Pty Ltd, and Hanson Construction Materials Pty Ltd. The dispute centred on the validity of a proposed industrial action ballot conducted by the Union. The matter was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether the ballot was conducted in accordance with the provisions of the Fair Work Act 2009. Specifically, the Commission needed to determine if the ballot complied with the requirements for protected industrial action, including the notification and timing provisions outlined in the Act. The Union argued that the ballot was properly conducted and met all statutory requirements, while Hanson Construction Materials Pty Ltd contended that the ballot was flawed and invalid.

The Commission considered the legislative framework and relevant case law to assess the Union's compliance with the statutory requirements. It was found that the Union had failed to provide adequate notice to the employer prior to conducting the ballot, which was a critical procedural requirement. The Commission concluded that this failure rendered the ballot invalid and, consequently, any subsequent industrial action would be unprotected. The employer's application to have the ballot declared invalid was upheld.

The Fair Work Commission ordered that the proposed industrial action ballot was invalid and that any industrial action taken by the employees would be unprotected. The Commission's decision effectively invalidated the proposed industrial action, protecting Hanson Construction Materials Pty Ltd from the consequences of unprotected action.

Transport Workers' Union of Australia v Hanson Construction Materials Pty Ltd T/A Hanson

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established