Transport Workers' Union of Australia v Kinetic (Melbourne) Pty Ltd T/A Kinetic

In this case, the Transport Workers' Union of Australia (TWU) applied for a protected action ballot order (PABO) under section 443 of the Fair Work Act 2009 (Act) against Kinetic (Melbourne) Pty Ltd (Kinetic). The application was heard on 11 March 2022, with additional evidence provided later the same day. Kinetic opposed the application, contending that one of the prerequisites for the PABO had not been met. Specifically, Kinetic argued that the TWU had not been genuinely trying to reach a new enterprise agreement with them. The employer also sought an extended period of notice for certain forms of industrial action proposed in the order.

The court had to determine whether the statutory requirements for a PABO had been met, and whether there were exceptional circumstances warranting an exercise of discretion to require an additional period of notice for certain forms of industrial action. The court considered evidence and submissions from both parties and the relevant provisions of the Act. The court found that the requirements for a PABO had been met and issued the order on 16 March 2022. The court also ordered that an extended period of notice be given for some of the proposed industrial action.

The court found that the TWU had met the statutory requirements for a PABO and issued the order on 16 March 2022. The court also found that exceptional circumstances warranted an exercise of discretion to require an additional period of notice for certain forms of industrial action. The court ordered that an extended period of notice be given for those actions. The court noted that any party seeking the Commission's assistance to deal with the bargaining dispute may apply under section 240 of the Act.