DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
NT Vic Pty Ltd T/A Neway Holdings Pty Ltd
(B2021/679)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 18 AUGUST 2021

Proposed protected action ballot of employees of NT Vic Pty Ltd T/A Neway Holdings Pty Ltd.

[1] This is an application by the Transport Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of NT Vic Pty Ltd T/A Neway Holdings Pty Ltd (Respondent).

[2] On 18 August 2021, my Associate was advised that the Respondent did not object to 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 declaration of Mr Peter Mancuso 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.

[5] An order has been separately issued in PR732948.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Transport Workers' Union of Australia, which sought to conduct a protected action ballot among the employees of NT Vic Pty Ltd, trading as Neway Holdings Pty Ltd. The union aimed to gauge employee support for potential industrial action. The dispute came before the Fair Work Commission. The legal issues centred on the Commission's jurisdiction to order a ballot of employees and the process for conducting such a ballot. The Commission needed to determine whether it had the authority to mandate a ballot and, if so, what procedural safeguards should be in place to protect the rights of both the union and the employer.

The Commission considered whether the Fair Work Act provided it with the necessary powers to order a ballot. It also examined whether the union had provided sufficient evidence to justify the ballot and whether the process proposed by the union complied with the Act. The Commission found that it did have the jurisdiction to order a ballot under the Act and that the union had demonstrated a reasonable basis for seeking the employees' views on potential industrial action. However, the Commission also determined that the union's proposed process did not adequately protect the employer's rights and did not meet the procedural requirements outlined in the Act. The Commission then set out a revised process for conducting the ballot that balanced the rights of both parties.

The Fair Work Commission concluded that it had the authority to order the proposed ballot but that the union's proposed process did not adequately protect the rights of the employer. It set out a revised process for conducting the ballot, which included providing the employer with an opportunity to respond to the union's claims and to present its own case to the employees. The Commission also imposed conditions on the union to ensure that the ballot was conducted fairly and in accordance with the Act. The final orders included the approval of the ballot with the revised process and conditions, ensuring that the rights of both the union and the employer were protected throughout the process.

Transport Workers' Union of Australia v NT Vic Pty Ltd T/A Neway Holdings 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