Transport Workers' Union of Australia v K. & S. Freighters Pty. Ltd

[2024] FWC 3553

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v

K. & S. Freighters Pty. Ltd.

(B2024/1667)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 20 DECEMBER 2024

Proposed protected action ballot of employees of K. & S. Freighters Pty. Ltd.

This is an application by the Transport Workers’ Union of Australia (TWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of K. & S. Freighters Pty. Ltd. (K & S Freighters or Employer).

On 19 December 2024, the Commission was advised that the Employer, in effect, did not object to 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 declaration of Kim Scarlett, TWU Organiser, setting out the steps taken by the TWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with K & S Freighters, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Vero Engagement and Voting Solutions Pty Ltd (Vero Voting). Vero Voting has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 8 January 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR782698.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of K. & S. Freighters Pty. Ltd. The application was made to determine the dispute over the proposed agreement between the union and the employer. The employer did not object to the application, and the matter was determined on the papers without a hearing. The union presented a declaration by Kim Scarlett, TWU Organiser, which outlined the bargaining process and the union's efforts to reach an agreement with the employer.

The legal issues for the Fair Work Commission to decide were whether the notification time for the proposed agreement was met and whether all the requirements under section 443(1) of the Act were satisfied. The union argued that it had genuinely tried to reach an agreement with the employer and that all necessary steps had been taken. The Commission was satisfied with the evidence presented and determined that the notification time was met, and all requirements of section 443(1) were fulfilled.

The Commission concluded that the union had met all the necessary conditions for a protected action ballot order and determined the closing date for voting as 8 January 2025. The ballot was to be conducted by Vero Engagement and Voting Solutions Pty Ltd, an approved agent under section 468A of the Act. The matter was assigned to another Member of the Commission for a compulsory conciliation conference under section 448A of the Act. The Commission also issued an Order requiring the attendance of all bargaining representatives and likely issued directions to ensure meaningful negotiations.

The Fair Work Commission granted the union's application for a protected action ballot order and set the closing date for voting as 8 January 2025. The ballot was to be conducted by Vero Engagement and Voting Solutions Pty Ltd. The matter was assigned to another Member of the Commission to conduct a compulsory conciliation conference under section 448A of the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established