Transport Workers' Union of Australia v McColl's Operations Pty Ltd

[2024] FWC 2387

[2024] FWC 2387

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v

McColl’s Operations Pty Ltd

(B2024/1135)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 5 SEPTEMBER 2024

Proposed protected action ballot of employees of McColl’s Operations Pty Ltd

1. 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 McColl’s Operations Pty Ltd (McColl’s or Employer).

1. On 3 September 2024, the Employer advised the Commission of concerns it had in relation to the scope of employees who are to be balloted and the period of notice for any protected industrial action.

1. In the circumstances, I decided to conduct a preliminary hearing on 4 September 2024. On 5 September 2024, the parties subsequently reached an agreed position on the outstanding issue and the Employer confirmed that it did not object to the Application as amended to reflect that outcome.

1. The bargaining is being undertaken for a proposed Enterprise Agreement that would cover those employees who are engaged to work in the Gippsland region of Victoria and are presently covered by the McColl’s Operations Gippsland Dairy Transport Agreement 2021-2023 or the Peter Stoitse Transport Milk Enterprise Agreement 2021. This is the scope of the “proposed Enterprise Agreement” contemplated in Clause 3 of the Order ultimately made by the Commission.

1. On the basis of the material before me, including the declaration of Alan MacGill, Organiser, 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 McColl’s, 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.

1. The ballot is to be conducted by the Australian Electoral Commission (AEC).

1. 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 18 October 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

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

1. An Order has been separately issued in PR778931.

1. 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 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] This is, in effect, 30 working days from the date of the Order as required by the AEC.

Printed by authority of the Commonwealth Government Printer

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