Transport Workers' Union of Australia v Hymix Australia Pty Limited

[2022] FWC 962

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Hymix Australia Pty Limited

(B2022/334)

VICE PRESIDENT CATANZARITI

SYDNEY, 27 APRIL 2022

Proposed protected action ballot of employees of Hymix Australia Pty Limited

This is an application by the Transport Workers’ Union of Australia (NSW Branch) (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 Hymix Australia Pty Limited (Respondent).

On 22 April 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

On the basis of the material before me, including the statutory declaration of Ray Fitzpatrick of the Applicant declared on 19 April 2022, 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.

An Order has been separately issued in PR740807.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia (NSW Branch) applied to the Fair Work Commission for a protected action ballot order concerning certain employees of Hymix Australia Pty Limited. The application was made under section 437 of the Fair Work Act 2009, and the dispute centred on the proposed ballot to allow the employees to take protected action. Hymix Australia Pty Limited did not oppose the application, leading the Fair Work Commission to determine the matter based on the documents submitted without a hearing.

The primary legal issue the Commission had to decide was whether the union had genuinely tried to reach an agreement with the employer, as required by section 443(1) of the Fair Work Act 2009. This determination was based on the statutory declaration of Ray Fitzpatrick of the Transport Workers' Union of Australia, which detailed the union's bargaining efforts and its ongoing attempts to reach an agreement with Hymix Australia Pty Limited. The Commission was required to assess if these efforts met the statutory requirements for a protected action ballot.

The Fair Work Commission found that the union had indeed been genuinely trying to reach an agreement with the employer. The Vice President was satisfied that the statutory requirements for a notification time in relation to the proposed agreement had been met, as evidenced by the union's declaration. Consequently, the Commission granted the application for a protected action ballot order. The decision underscores the importance of genuine bargaining efforts as a prerequisite for such ballots under the Fair Work Act 2009.

An order was issued in PR740807, permitting the Transport Workers' Union of Australia to proceed with the protected action ballot for its members at Hymix Australia Pty Limited. This decision affirms the Commission's role in facilitating fair workplace practices and ensuring that both employers and unions adhere to the legislative requirements for protected actions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established