Transport Workers' Union of Australia v Linfox Armaguard Pty Ltd T/A Armaguard

[2024] FWC 748

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v

Linfox Armaguard Pty Ltd T/A Armaguard

(B2024/244)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 22 MARCH 2024

Proposed protected action ballot of employees of Linfox Armaguard Pty Ltd

This is an application by the Transport Workers’ Union of Australia (TWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Linfox Armaguard Pty Ltd T/A Armaguard (Armaguard or Employer).

On 21 March 2023, the Commission was advised that Armaguard, in effect, did not object to the Application.[1]

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 declaration of Mr Peter Mancuso on behalf of the TWU, setting out the steps taken by the TWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with them, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Australian Electoral Commission. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 8 May 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of 5 working days written notice for the purposes of s.414(2)(b) of the Act when taking the forms of the industrial action set out in Clause 5 of the Order made by the Commission.

An order has been separately issued in PR772639.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] The parties had engaged in discussions regarding the notice period for the taking of protected industrial action. The parties agreed to an extended period of notice, which I have outlined within Paragraph 7 of this Decision.

[2] This is, in effect, 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application from the Transport Workers' Union of Australia for a protected action ballot order concerning employees of Linfox Armaguard Pty Ltd T/A Armaguard. The application was made under section 437 of the Fair Work Act 2009. The employer, Linfox Armaguard, indicated it did not object to the application, leading to the matter being determined on the provided documents without a hearing. The union had engaged in bargaining with the employer and had made a declaration to that effect. The Commission was satisfied that all requirements for the ballot had been met and granted the order, specifying the Australian Electoral Commission would conduct the ballot and setting the closing date for voting as 8 May 2024.

The legal issues the court had to address included whether the union had genuinely attempted to reach an agreement with the employer and if the union had fulfilled all the requirements under sections 443(1) and 443(5) of the Fair Work Act 2009. The court considered the evidence provided by the union, which included a declaration detailing their bargaining efforts, and determined that all necessary conditions for the ballot were met. The court also addressed the exceptional circumstances that justified an extended period of 5 working days for the notice of the industrial action, as required under section 414(2)(b) of the Act.

The Deputy President concluded that the union had satisfied all the legislative requirements and granted the order for a protected action ballot. The order mandated the Australian Electoral Commission to conduct the ballot, with voting to close on 8 May 2024. Additionally, the matter was assigned to another member of the Commission to conduct a compulsory conciliation conference, with an order requiring the attendance of all bargaining representatives to engage in meaningful negotiations. The decision ensures that the ballot process proceeds as per the law while facilitating further negotiations between the union and the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established