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

[2017] FWC 3668

[2017] FWC 3668

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
K&S Freighters Pty Ltd
(B2017/575)

DEPUTY PRESIDENT BULL PERTH, 11 JULY 2017

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

[1] On 10 July 2017, an application pursuant to s.437 of the Fair Work Act 2009 (theAct) was filed by the Transport Workers’ Union of Australia (TWU/applicant) for a protected action ballot order in relation to certain employees employed by K&S Freighters Pty Ltd (K&S Freighters/respondent).

[2] The employees to be balloted are members of the TWU employed by the respondent in the classifications to be covered by the proposed enterprise agreement in the State of Western Australia and for whom the TWU is a bargaining agent.

[3] In support of its application, the F34B Statutory Declaration made by Mr Michael Knowles (signed 10 July 2017), WA Lead Organiser for the TWU, advised that the current enterprise agreement – K&S Freighters Pty Ltd Transport Employees Collective Agreement 2014 Western Australia (Kewdale) expired on 31 December 2015. 1

[4] Mr Knowles stated that since the commencement of negotiations for a new enterprise agreement there have been at least 2 bargaining meetings, as well as numerous telephone conversations and emails between the applicant and respondent.

[5] Despite the negotiations between the parties, no agreement has been reached with the issues of annual wage increases, back-pay and allowances outstanding.

[6] By way of email dated 11 July 2017, Ms Erin Compitiello on behalf of the respondent advised that K&S Freighters do not oppose the TWU application.

[7] Under s.437 of the Act, a bargaining representative of an employee who will be covered by a proposed enterprise agreement may apply to the Commission for an Order requiring a protected action ballot to be conducted (within a specified period) to determine whether employees wish to engage in particular protected industrial action for the agreement.

[8] The specific terms of s.443 are extracted below:

443 When FWC must make a protected action ballot order

(1) FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(My underline)

[9] The legislation as expressed at s.443(1) requires that the Commission must make a protected action ballot order if satisfied the applicant has been, and is, genuinely trying to reach an agreement with the employer.

[10] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the TWU as stated in Mr Knowles’ statutory declaration, that the TWU has been and is, genuinely trying to reach an agreement with the respondent. There was nothing put to question the bona fides of the TWU’s claim to be genuinely trying to reach an agreement with the respondent.

[11] Having regard to the evidence before me, I am satisfied that the requirements in s.443(1) of the Act have been met and an order [PR594479] based on the draft provided by the TWU is issued in conjunction with this decision.

DEPUTY PRESIDENT

 1   The nominal expiry date of 31 December 2015 is subject to some conjecture as the Agreement also states that it will operate seven days from the date of approval (12 November 2014) and remain in force for two years.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR594478>