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

[2022] FWC 3005

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia

K. & S. Freighters Pty. Ltd.

(B2022/1706)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 11 NOVEMBER 2022

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

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 K. & S. Freighters Pty. Ltd. (Respondent).

On 11 November 2022, my Associate was advised that the Respondent 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 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.

An order has been separately issued in PR747869.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia (Applicant) 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. (Respondent). The application was made in the context of a dispute over proposed changes to the employees' conditions of employment. The Respondent did not object to the application, and the matter was determined on the papers without the need for a hearing. The Deputy President of the Commission, Clancy, was tasked with deciding the application.

The central legal issue before the court was whether the requirements of section 443(1) of the Fair Work Act had been met, which are necessary for the granting of a protected action ballot order. Specifically, the court needed to determine whether there was a notification time in relation to the proposed agreement and whether the Applicant had genuinely tried to reach an agreement with the Respondent. The court based its decision on the declaration of Mr Wayne Commerford of the Applicant, which outlined the steps taken by the Applicant in bargaining with the Respondent and its efforts to reach an agreement.

After considering the material before it, the court found that the requirements for a protected action ballot order had been met. The court was satisfied that there was a notification time in relation to the proposed agreement and that the Applicant had genuinely tried to reach an agreement with the Respondent. As such, the court granted the application for a protected action ballot order. An order was separately issued in PR747869, reflecting the court's decision.

In conclusion, the Fair Work Commission granted the application by the Transport Workers' Union of Australia for a protected action ballot order in relation to certain employees of K. & S. Freighters Pty. Ltd. The decision was based on the material provided by the Applicant, which demonstrated that the requirements of section 443(1) of the Fair Work Act had been met. The Respondent did not object to the application, and the matter was determined on the papers without the need for a hearing. The court's decision was reflected in an order issued separately in PR747869.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established