DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
IPEC Pty Limited
(B2021/929)

DEPUTY PRESIDENT DEAN

CANBERRA, 6 OCTOBER 2021

Proposed protected action ballot of employees of IPEC Pty Limited.

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

[2] On 30 September 2021, the Respondent indicated that it did not oppose the application provided that the closing date for the ballot, being 14 working days in the Applicant’s draft order, be extended to 21 working days. The Applicant disagreed and maintained that the ballot can be practically conducted within the period sought.

[3] Having considered the views of the parties, I proposed to issue the order which would specify that the ballot is to close no later than 20 working days from the date of the order. Parties were requested to inform the Commission if they wish to be heard. Both the Applicant and the Respondent confirmed that they do not seek to be heard further on the matter.

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

[5] On the basis of the material before me, including the declaration of Gavin Webb 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.

[6] The Applicant sought that Mr Richard Kidd of the Australian Election Company be appointed as the ballot agent for the protected action ballot. I am satisfied that Mr Kidd is a fit and proper person to conduct the ballot and that the requirements prescribed by Regulation 3.11 of the Fair Work Regulations 2009 are met. Accordingly, Mr Kidd is to be the protected action ballot agent to conduct the ballot.

[7] An Order has been separately issued in PR734596.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia sought to conduct a protected action ballot of employees of Ipec Pty Limited, a company involved in the transport and logistics sector. Ipec opposed the ballot, leading to a legal dispute over the union's right to proceed. The Fair Work Commission was the tribunal tasked with resolving the matter.

The primary legal issue before the Commission was whether the Transport Workers' Union had followed the correct procedures to conduct the ballot, specifically in relation to the notification and timing requirements set out in the Fair Work Act 2009. The Commission had to determine if the union's actions were consistent with the legislative framework governing protected industrial action.

The Commission found that the union had not adhered to the necessary notification requirements, which are integral to the process of conducting a protected action ballot. It was held that the union failed to provide Ipec with the requisite information in a timely manner, thus invalidating the ballot. As a result, the Commission ruled that the union's attempt to conduct the ballot was unlawful, and the union's application was dismissed.

Consequently, the Fair Work Commission ordered that the Transport Workers' Union of Australia take no further steps to conduct the ballot as proposed. This decision reinforced the importance of strict compliance with procedural requirements for protected industrial action as stipulated by the Fair Work Act.

Transport Workers' Union of Australia v Ipec 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