Transport Workers' Union of Australia v MWAV Pty Ltd T/A Man with a Van

[2022] FWC 2697

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

MWAV Pty Ltd T/A Man With A Van

(B2022/1526)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 OCTOBER 2022

Proposed protected action ballot of employees of MWAV Pty Ltd T/A Man With A Van.

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

On 7 October 2022, my Associate was advised that the Respondent did not object to 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 declaration of Mr Alan Macgill of the Applicant 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.

The Applicant sought that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Vero Engagement & Voting Solutions Pty Ltd (Vero). I am satisfied that Vero is a fit and proper person to conduct the ballot. I am also satisfied that Vero is capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. Vero has agreed to be the protected action ballot agent and is bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

Therefore I appoint Vero as the protected action ballot agent.

An order has been separately issued in PR746583.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia lodged an application with the Fair Work Commission, seeking an order for a protected action ballot among certain employees of MWAV Pty Ltd T/A Man With A Van. The application was made under section 437 of the Fair Work Act 2009, and the Commission, through Deputy President Clancy, determined the matter without a hearing as the respondent did not object. The applicant, the Transport Workers' Union of Australia, aimed to conduct the ballot due to ongoing bargaining efforts with the respondent and to meet the statutory requirements outlined in section 443(1) of the Fair Work Act 2009.

The primary legal issue before the Commission was whether the conditions for a protected action ballot were satisfied. This involved confirming that a notification period for the proposed agreement existed and that the union had genuinely attempted to reach an agreement with the employer. Additionally, the court had to decide whether the proposed ballot agent, Vero Engagement & Voting Solutions Pty Ltd, was a suitable entity to conduct the ballot, ensuring the confidentiality and security of the voting process.

Deputy President Clancy found that the union had fulfilled the requirements for initiating a protected action ballot. The notification period for the proposed agreement was established, and the union's efforts to reach an agreement with the employer were deemed genuine. The proposed ballot agent, Vero, was considered a fit and proper person to conduct the ballot, capable of ensuring the secrecy and security of the votes. Vero had also agreed to comply with the Privacy Act 1998 in handling the information related to the ballot. Consequently, the Commission appointed Vero as the ballot agent for the protected action ballot.

In summary, the Fair Work Commission granted the application for a protected action ballot, appointed Vero Engagement & Voting Solutions Pty Ltd as the ballot agent, and issued a separate order to that effect.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established