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

The Transport Workers' Union of Australia sought a declaration that the proposed protected action ballot of employees of K&S Freighters Pty Ltd was valid. The respondents argued that the ballot was invalid as the union had failed to provide the required 7 days' notice of the ballot. The case was heard in the Federal Court of Australia. The central legal issue was whether the union had provided sufficient notice of the proposed protected action ballot, as required by the Fair Work Act 2009. The union argued that the notice was valid as it was given on 11 April, and the ballot was to be held on 17 April, thereby providing the requisite 7 days' notice. The respondents contended that the notice was invalid as it did not strictly comply with the 7-day notice requirement, and the ballot could not proceed without proper notice.

The Court found that the union had not strictly complied with the 7-day notice requirement as the notice was given on 11 April, and the ballot was to be held on 17 April, which only amounted to 6 days' notice. The Court held that the union's failure to provide the required 7 days' notice rendered the proposed protected action ballot invalid. The union's argument that the notice was given in good faith and the employer had not been prejudiced was rejected by the Court. The Court held that strict compliance with the statutory notice requirement was necessary to maintain industrial peace and prevent industrial action from proceeding without proper notice.

The Court declared that the proposed protected action ballot of the employees of K&S Freighters Pty Ltd was invalid due to the union's failure to provide the required 7 days' notice. As a result, the union was unable to proceed with the ballot and take any protected action without first providing the necessary notice. The Court's decision emphasised the importance of strict compliance with statutory notice requirements in protected action ballots to ensure industrial peace and prevent unprotected industrial action.

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