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

[2023] FWC 1242

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

K & S Freighters Pty Ltd T/A K & S Freighters Pty Ltd

(B2023/495)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 26 MAY 2023

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 26 May 2023, 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 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 PR762545.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia, acting as the applicant, sought a protected action ballot order against K & S Freighters Pty Ltd, the respondent, under section 437 of the Fair Work Act 2009. The union aimed to conduct a ballot for protected action among the employees of K & S Freighters Pty Ltd. The court was presented with the matter on 26 May 2023, and the respondent did not oppose the application. Consequently, the Deputy President decided to resolve the matter based on the submitted documents without conducting a hearing.

The primary legal issue before the court was whether the union had satisfied the conditions set forth in section 443(1) of the Fair Work Act 2009. Specifically, the court needed to determine if there was a notification time in relation to the proposed agreement and if the union had genuinely tried to reach an agreement with the respondent during bargaining. The union submitted a declaration from Mr. Commerford, affirming that they had indeed been genuinely attempting to reach an agreement with the respondent.

The Deputy President, after reviewing the material provided, was satisfied that the union had fulfilled the notification time requirement and had genuinely tried to reach an agreement with the respondent. Based on these findings, the court granted the union's application for a protected action ballot order. The decision was made without a hearing, and an order was issued separately in PR762545.

The final orders of the court were to grant the union's application for a protected action ballot order, allowing them to proceed with the ballot among the employees of K & S Freighters Pty Ltd. The decision was rendered on the basis of the submitted material and the lack of objection from the respondent.

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