Transport Workers' Union of Australia v Janala Pty Ltd T/A Cope Sensitive Freight

[2022] FWC 2641

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Janala Pty Ltd T/A Cope Sensitive Freight

(B2022/1481)

VICE PRESIDENT CATANZARITI

SYDNEY, 30 SEPTEMBER 2022

Proposed protected action ballot of employees of Janala Pty Ltd T/A Cope Sensitive Freight

This is an application by the Transport Workers’ Union of Australia (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 Janala Pty Ltd T/A Cope Sensitive Freight (Respondent).

On 30 September 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 Jack Boutros of the Applicant declared on 26 September 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 PR746384.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers’ Union of Australia has applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of Janala Pty Ltd T/A Cope Sensitive Freight. The matter was determined on the papers without a hearing, as the respondent did not oppose the application. The primary focus of the application is to seek authorisation for a ballot to conduct protected industrial action by the employees of Janala Pty Ltd T/A Cope Sensitive Freight, a company involved in sensitive freight transportation.

The central legal issue the Commission had to address was whether the Transport Workers’ Union of Australia had satisfied the requirements set forth in section 437 of the Fair Work Act 2009 for a protected action ballot. Specifically, the Commission had to determine if the union had genuinely attempted to reach an agreement with the employer and if the notification time for the proposed agreement had been met. This determination was based on the material presented, including the statutory declaration by Jack Boutros of the Applicant, which detailed the union's bargaining efforts and its ongoing attempts to reach an agreement with the employer.

The Vice President of the Fair Work Commission, Catanzariti, concluded that the union had met the statutory requirements for a protected action ballot. This conclusion was based on the evidence provided by the union that it had been genuinely trying to reach an agreement with the employer and that the notification time for the proposed agreement had been properly observed. Consequently, the Commission was satisfied that the requirements under section 443(1) of the Act were fulfilled, leading to the approval of the ballot order.

The Fair Work Commission issued an order in PR746384, authorising the Transport Workers’ Union of Australia to proceed with the protected action ballot for the employees of Janala Pty Ltd T/A Cope Sensitive Freight. This decision allows the union to take the necessary steps to organise and conduct the ballot, provided it adheres to the terms and conditions set out in the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established