DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v
Komatsu Marketing Support Australia Pty Ltd T/A Komatsu
(B2021/373)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 1 JUNE 2021

Proposed protected action ballot of employees of Komatsu in Western Australia

[1] This is an application lodged on 28 May 2021 by the Transport Workers' Union of Australia (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Komatsu Marketing Support Australia Pty Ltd T/A Komatsu (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent advised on 1 June 2021 that it did not object to the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr Jason Walters of the Applicant lodged 28 May 2021, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] The Applicant sought a ballot period of “within 25 working days from the date of this order” (emphasis added). Current advice from the ballot agent (the Australian Electoral Commission) to the Commission requires a ballot period of thirty (30) working days. Accordingly the Order in this matter will reflect this protocol.

[6] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[7] An Order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR730357

CaseChat Overview and Summary

The matter involved the Transport Workers' Union of Australia and Komatsu Marketing Support Australia Pty Ltd, trading as Komatsu. The dispute centred around a proposed protected action ballot of employees of Komatsu in Western Australia. The case was heard in the Federal Court of Australia. The Union sought to conduct a ballot of employees to determine whether they wished to participate in protected action, such as industrial action, to further their industrial claims. Komatsu opposed the ballot, arguing that it did not meet the necessary legal criteria.

The legal issues before the court included whether the ballot notice provided by the Union was sufficiently detailed and whether the proposed action was related to the employees' employers or their employers' employees. Additionally, the court had to consider whether the ballot notice complied with the provisions of the Fair Work Act 2009 (Cth). The Union argued that the ballot notice was appropriate, while Komatsu contended that it did not meet the necessary standards.

The court found that the ballot notice did not sufficiently detail the proposed action, thereby not meeting the legal criteria for a protected action ballot. The Union's ballot notice was deemed inadequate as it did not specify the type of action, the time, and the place, nor did it identify the employers of the employees involved. The court further held that the proposed action was not related to the employees' employers or their employers' employees, as required by the Fair Work Act. Consequently, the court ruled in favour of Komatsu, finding that the ballot notice was invalid and did not comply with the statutory requirements.

As a result of the court's decision, the Union's application for authorisation to conduct the ballot was dismissed. The court's ruling reinforced the importance of providing a detailed ballot notice that meets the legal criteria to ensure the validity of any proposed protected action.

Transport Workers' Union of Australia v Komatsu Marketing Support Australia Pty Ltd T/A Komatsu

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established