Transport Workers' Union of Australia v Linfox Armaguard Pty Ltd

[2022] FWC 1988

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Linfox Armaguard Pty Ltd

(B2022/1127)

VICE PRESIDENT CATANZARITI

SYDNEY, 27 JULY 2022

Proposed protected action ballot of employees of Transport Workers’ Union of Australia

This is an application by the Transport Workers’ Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Linfox Armaguard Pty Ltd (Respondent).

On 25 July 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of James Wilkinson of the Applicant declared on 21 July 2022, 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 PR744240.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, presided over by Vice President Catanzariti, dealt with an application from the Transport Workers' Union of Australia (Applicant) under section 437 of the Fair Work Act 2009 for a protected action ballot order regarding certain employees of Linfox Armaguard Pty Ltd (Respondent). The application was made on 21 July 2022, and the Commission was informed on 25 July 2022 that the Respondent did not oppose the application. Given the absence of opposition and the availability of pertinent documents, Vice President Catanzariti opted to determine the matter through written submissions rather than conducting a hearing.

The central legal issue before the court was whether the Transport Workers' Union of Australia had satisfied the prerequisites for a protected action ballot under the Fair Work Act 2009. Specifically, the court had to verify if the union had genuinely attempted to reach an agreement with the Respondent and if there was a notification period in relation to the proposed agreement. This determination was based on the statutory declaration provided by James Wilkinson of the Applicant, which outlined the union's bargaining efforts and its commitment to reaching an agreement with the Respondent.

Vice President Catanzariti was satisfied that the union had genuinely attempted to reach an agreement with the Respondent and that a notification period was in effect for the proposed agreement. This conclusion was drawn from the statutory declaration provided by James Wilkinson, which detailed the union's bargaining efforts and its continuous attempt to reach an agreement. Given these findings, the court determined that the requirements set forth in section 443(1) of the Act had been met, warranting the granting of the protected action ballot order.

In light of the decision, the Fair Work Commission issued an order permitting the protected action ballot to proceed. This ruling underscores the importance of genuine bargaining efforts and the adherence to notification periods in the context of union-employer negotiations under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established