Transport Workers' Union of Australia v K&S Freighters Pty Ltd T/A K&S Energy

[2024] FWC 2942

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 T/A K&S Energy

(B2024/1384)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 23 OCTOBER 2024

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

This is an application by the Transport Workers' Union of Australia acting through its South Australian and Northern Territory branch (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 trading as K&S Energy (K&S or Employer).

The parties are bargaining for an enterprise agreement to replace the K&S Energy South Australian Tankers Agreement 2022.

On 23 October 2024, the Commission was advised that the Employer, in effect, did not object to the Application as amended to correctly cite its identity.

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 Justin Lewis, Branch Assistant Secretary, 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, 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 6 November 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR780514.

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 date of the Order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia, through its South Australian and Northern Territory branch, applied to the Fair Work Commission for a protected action ballot order concerning certain employees of K&S Freighters Pty Ltd, trading as K&S Energy. The application was made under section 437 of the Fair Work Act 2009, seeking permission to conduct a ballot for potential industrial action. The union and the employer were engaged in negotiations for a new enterprise agreement to replace the existing K&S Energy South Australian Tankers Agreement 2022. The employer did not object to the application, allowing the Commission to proceed without a hearing.

The central legal issue before the Commission was whether the union had met the requirements under section 443 of the Fair Work Act for a protected action ballot order. The Commission needed to determine if the union had genuinely attempted to reach an agreement with the employer and if all procedural requirements were satisfied. The union's declaration by Justin Lewis, Branch Assistant Secretary, outlined the steps taken during the bargaining process, asserting that the union had been genuinely trying to reach an agreement. The Commission also had to establish the closing date for the ballot voting, as mandated by section 443(3)(c) of the Act.

The Deputy President, Hampton, concluded that the union had met all the necessary requirements for a ballot order. The union's efforts in bargaining and the employer's lack of objection were significant factors in this decision. The closing date for voting was set as 6 November 2024, which was 10 working days from the date of the order. The Commission further directed that the matter would be assigned to another member for a compulsory conciliation conference under section 448A of the Act. This member would issue an order requiring the attendance of all bargaining representatives and issue directions to ensure meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established