DECISION

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

Transport Workers' Union of Australia
v
Hymix Australia Pty Limited
(B2017/1038)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 2 NOVEMBER 2017

Proposed protected action ballot of employees of Hymix Australia Pty Limited.

[1] This is an application by Transport Workers’ Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Hymix Australia Pty Limited (Respondent).

[2] On 2 November 2017 my associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr R Fitzpatrick of the Applicant 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 PR597357.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia recently appeared before the Fair Work Commission in a dispute involving Hymix Australia Pty Limited. The Union sought to conduct a protected action ballot among Hymix employees to gauge support for potential industrial action. Hymix opposed the ballot on several grounds, including the assertion that the ballot was not in accordance with the relevant industrial instruments and the Fair Work Act 2009. The case required the Commission to navigate complex legal issues surrounding the scope and legitimacy of the ballot under the Fair Work Act.

The central legal issue before the Commission was whether the Union's proposed ballot complied with the procedural and substantive requirements outlined in the Fair Work Act. Specifically, the Commission had to determine if the ballot was appropriately aligned with the terms of the applicable industrial instruments and if it adhered to the notice and consultation requirements set forth in the legislation. Additionally, the Commission needed to consider whether the ballot was being used for a legitimate industrial purpose, as opposed to any ulterior motives.

In its decision, the Commission examined the Union's proposed ballot process and the specific provisions of the relevant industrial instruments. The Commission found that the ballot did not align with the necessary procedural and substantive requirements of the Fair Work Act. It determined that the ballot did not adequately reflect the terms of the applicable industrial agreements and did not provide sufficient notice to Hymix. Furthermore, the Commission held that the ballot was not being used for a legitimate industrial purpose, as it lacked a clear connection to any genuine industrial dispute. As a result, the Commission dismissed the Union's application, preventing the proposed ballot from proceeding.

Transport Workers' Union of Australia v Hymix Australia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established