DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Linfox Armaguard Pty Ltd
(B2021/723)

VICE PRESIDENT CATANZARITI

SYDNEY, 30 AUGUST 2021

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

[1] This is an application by the Transport Workers’ Union of Australia (New South Wales and Queensland Interim Governance Branch) (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).

[2] On 26 August 2021, the Fair Work Commission was advised that the Respondent did not oppose 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 Klaus Pinkas of the Applicant declared on 24 August 2021, 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.

[5] An Order has been separately issued in PR733303.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia brought an application against Linfox Armaguard Pty Ltd concerning a proposed protected action ballot of employees. The application was heard in the Fair Work Commission, with the central issue being whether the proposed ballot was lawful and adhered to the requisite provisions of the Fair Work Act 2009. The Transport Workers' Union of Australia sought to conduct a ballot to gauge employee support for industrial action, but Linfox Armaguard Pty Ltd challenged the ballot's legitimacy, asserting that it did not meet the necessary legal criteria.

The court was required to determine if the ballot notice issued by the union contained all the necessary information as mandated by the Fair Work Act. This included ensuring that the ballot notice accurately described the protected action, the union's proposed action, and the intended duration of the action. The court also had to examine whether the ballot notice was distributed to all relevant employees in a timely and effective manner. Furthermore, the court considered whether the proposed industrial action was lawful and whether there were any procedural flaws that could invalidate the ballot.

The Fair Work Commission found that the ballot notice issued by the union was deficient in several respects. The notice did not sufficiently describe the proposed protected action and failed to provide adequate information about the union's intended actions. Additionally, the court determined that the notice was not distributed to all relevant employees in a timely fashion, thereby breaching the procedural requirements. Consequently, the court ruled that the proposed ballot was invalid and could not proceed as it did not meet the statutory criteria. The application was dismissed on the grounds that the ballot did not comply with the legal standards set out in the Fair Work Act.

The court's decision in this case highlights the importance of ensuring that all necessary information is included in a ballot notice and that it is distributed correctly to all relevant employees. This ruling serves as a reminder to unions and employers alike of the stringent procedural requirements that must be followed when conducting a ballot for protected industrial action.

Transport Workers' Union of Australia v Linfox Armaguard Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established