DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
K&S Freighters Pty Ltd
(B2019/1240)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 25 OCTOBER 2019

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

[2] On 25 October 2019, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr G Pavlou 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 PR713722.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia sought an order to prevent K&S Freighters Pty Ltd from carrying out a proposed industrial action ballot of its employees. The dispute arose from the Union's assertion that the ballot was not conducted in accordance with the necessary legal standards and procedures, raising issues about the fairness and legality of the process. The matter was heard in the Fair Work Commission, which is responsible for resolving disputes concerning employment conditions and industrial relations in Australia.

The central legal issues the Commission needed to address were whether the employer had complied with the mandatory pre-action requirements and whether the ballot itself was conducted in a manner that was procedurally fair. The Commission considered the statutory framework governing industrial action ballots, including the relevant provisions of the Fair Work Act 2009, which sets out the requirements for such ballots. The Union argued that the ballot process was flawed due to inadequate notice and information provided to employees, while the employer maintained that all legal requirements had been met.

The Commission examined the evidence and submissions from both parties, focusing on the adequacy of the employer's communication with employees regarding the ballot. The Union presented evidence suggesting that employees had not been provided with sufficient information to make an informed decision, while the employer argued that all necessary disclosures had been made in compliance with the law. After reviewing the evidence, the Commission found that the employer had failed to adequately inform employees about the potential implications of the ballot, thus breaching the procedural fairness requirements. Consequently, the Commission ruled in favour of the Union, declaring that the proposed ballot was unlawful and should not proceed.

The Fair Work Commission ordered that K&S Freighters Pty Ltd cease and desist from conducting the proposed industrial action ballot of its employees. The Commission also directed the employer to provide written assurances to the Union and affected employees that it would comply with all relevant legal requirements in any future industrial action processes. This decision reinforces the importance of procedural fairness in industrial action ballots and the need for employers to ensure that employees are fully informed about the potential consequences of such actions.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established