Transport Workers' Union of Australia v Kinetic (Melbourne) Pty Ltd & KOCM 3 Pty Ltd

[2025] FWC 1519

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v

Kinetic (Melbourne) Pty Ltd & KOCM 3 Pty Ltd

(B2025/883)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 3 JUNE 2025

Proposed protected action ballot of employees of Kinetic (Melbourne) Pty Ltd and KOCM 3 Pty Ltd

This is an application by the Transport Workers’ Union of Australia (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 Kinetic (Melbourne) Pty Ltd and KOCM 3 Pty Ltd (collectively, the Employers). The Commission understands that the respondents are related businesses who engage employees who will be covered by the proposed agreement.[1]

On 3 June 2025, the Commission was advised that the parties had reached a consent position in relation to the inclusion of an extended notice period for taking protected industrial action.

In the circumstances, I have decided to amend the application to reflect the consent position reached and otherwise determined the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Imran Malik, Lead Organiser, setting out the steps taken by the TWU in bargaining with the Employers and that it has been, and is, genuinely trying to reach agreement with them, 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 Fair Vote Services Pty Ltd (Fair Vote). Fair Vote 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 20 June 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. By consent, the minimum extended notice period of seven (7) calendar days applies to the items listed within Clause 5 of the Order.

An Order has been separately issued in PR787881.

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] There is a dispute between the parties about whether the ‘proposed agreement’ will be one enterprise agreement or a separate agreement for each Respondent Employer.

[2] This is, in effect, 12 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia (TWU) lodged an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning employees of Kinetic (Melbourne) Pty Ltd and KOCM 3 Pty Ltd. The application was made to the Fair Work Commission, which oversees disputes under the Fair Work Act. The TWU sought to conduct a ballot to determine if the employees wished to take protected industrial action, specifically regarding certain terms of a proposed enterprise agreement. The application was made in response to ongoing negotiations between the TWU and the employers, which had not resulted in a resolution.

The primary legal issue before the Commission was whether the application met the statutory requirements for a protected action ballot. This included determining if the TWU had genuinely attempted to reach an agreement with the employers and if the proposed agreement met the notification time requirements under section 443 of the Act. Additionally, the Commission needed to decide if there were exceptional circumstances justifying an extended period of written notice for taking industrial action, as requested by the TWU. The determination of these issues was based on the evidence provided by the TWU and the consent position reached by the parties regarding the extended notice period.

The Deputy President of the Fair Work Commission, Hampton, examined the application and the evidence presented. The Commission was satisfied that the TWU had genuinely attempted to reach an agreement with the employers and that all requirements under section 443(1) of the Act were met. Given the consent position on the extended notice period, the Commission amended the application to reflect this agreement and decided the matter without a hearing. The Commission determined that the ballot would be conducted by Fair Vote Services Pty Ltd, an approved ballot agent, and set the closing date for voting as 20 June 2025. The Commission also found that exceptional circumstances existed, justifying an extended period of written notice for taking industrial action, and set the minimum extended notice period at seven calendar days.

The final orders included the approval of the ballot to be conducted by Fair Vote, the setting of the voting closing date, and the extension of the notice period as per the consent position. The matter was assigned to another member of the Commission to conduct a compulsory conciliation conference, with orders to be issued requiring the attendance of bargaining representatives and likely 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