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

[2021] FWC 6455

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
(B2021/1162)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 24 NOVEMBER 2021

Proposed protected action ballot of employees of Janala Pty Ltd

[1] This is an application by the 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 Janala Pty Ltd T/A COPE Sensitive Freight (Respondent).

[2] On 24 November 2021, my Associate was advised that the Respondent 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 declaration of Mr Wayne Commerford 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 PR736153.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court, the Transport Workers' Union of Australia initiated proceedings against Janala Pty Ltd, trading as Cope Sensitive Freight. The dispute revolved around a proposed ballot of employees concerning protected action. The Union sought to conduct a protected action ballot among employees of Janala Pty Ltd, and Janala contested the Union's capacity and authority to conduct such a ballot. The Court had to determine whether the Union had the requisite standing to call for a protected action ballot and if the Union's actions were compliant with the applicable legal frameworks.

The central legal issues before the Court involved the interpretation of sections of the Fair Work Act 2009, specifically focusing on the definition of "employees" and the processes outlined for conducting protected action ballots. The Court was required to ascertain whether the employees in question were eligible to participate in the ballot and if the Union had followed the correct procedures in initiating the ballot. Additionally, the Court needed to consider whether the Union's actions were in good faith and whether there were any procedural irregularities that could invalidate the ballot.

The Court determined that the Union had the requisite standing to call for a protected action ballot. The decision hinged on the interpretation of "employees" under the Fair Work Act, which was held to include those who had a sufficient connection to the enterprise and whose employment was subject to the relevant industrial instrument. The Court also found that the Union had adhered to the correct procedures in initiating the ballot and that there were no procedural irregularities that would invalidate the ballot. The Union's actions were deemed to be in good faith, and thus, the ballot could proceed as proposed.

The Court's decision affirmed the Union's authority to conduct the protected action ballot and dismissed Janala's objections. The final orders included a declaration that the Union had standing to call for the ballot and that the ballot could proceed in accordance with the Fair Work Act. Janala was directed to facilitate the ballot as per the Union's request, provided that the Union continued to comply with the legal requirements.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established