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

[2023] FWC 1663

The attached document replaces the document previously issued with the above code on 11 July 2023

Paragraph 2 has been amended to add “on the basis that Question 7 of the protected action ballot order is amended”.
Paragraph 8 has been amended to reflect that Deputy President Lake will hold a s.448A conference regarding this matter.

Associate to Deputy President Lake

Dated 11 July 2023

[2023] FWC 1663

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Linfox Armaguard Pty Ltd T/A Armaguard

(B2023/683)

DEPUTY PRESIDENT LAKE

BRISBANE, 11 JULY 2023

Proposed protected action ballot of employees of Linfox Armaguard Pty Ltd

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

On 10 July 2023, the Commission was advised that the Respondent did not object to the application on the basis that Question 7 of the protected action ballot order is amended.

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 James Wilkinson, TWU Organiser, setting out the steps taken by the TWU 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 all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has recently been approved as an eligible protected action ballot agent under s 468A of the Act and consequently is authorised to conduct the ballot. For the purposes of s.443(3)(c) and s.448A(2) of the Act, a ballot period of 15 working days from the date of the Order (11 July 2023) has been approved by the Commission.

An order has been separately issued in PR764060.

This matter will be assigned to me to conduct the s.448A conference and I will issue the Order requiring attendance 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia applied to the Fair Work Commission for a protected action ballot order concerning certain employees of Linfox Armaguard Pty Ltd T/A Armaguard. The application was made under section 437 of the Fair Work Act 2009. The proposed action involved employees who were part of the bargaining process with the union, which had been trying to reach an agreement with the employer. The employer did not object to the application, provided that certain amendments were made to the ballot order.

The primary legal issue was whether the union had met all the statutory requirements to hold a protected action ballot, including the notification period and the genuineness of the union's efforts in bargaining. The Commission also needed to determine whether the ballot agent, Democratic Outcomes Pty Ltd T/A CiVS, was eligible to conduct the ballot. Further, the Commission had to decide on the ballot period and ensure the process complied with the Act.

After reviewing the material, including the union's declaration and the absence of objections from the employer, Deputy President Lake determined that the union had fulfilled all the necessary requirements. The ballot agent was deemed eligible under section 468A of the Act. Consequently, the Commission issued the protected action ballot order, allowing for a 15 working day ballot period starting from 11 July 2023. The Deputy President also scheduled a section 448A conference to facilitate negotiations between the parties.

The Fair Work Commission granted the Transport Workers' Union of Australia's application for a protected action ballot order, subject to certain amendments. The order permits the union to conduct a ballot among specified employees of Linfox Armaguard Pty Ltd. The ballot period is set to commence on 11 July 2023 and last for 15 working days. Additionally, a section 448A conference was scheduled to encourage negotiations between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established