Transport Workers' Union of Australia v Peninsula Transit Pty Ltd Summary

[2022] FWC 507

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia

Peninsula Transit Pty Ltd

(B2022/171)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 8 MARCH 2022

Proposed protected action ballot of employees of Peninsula Transit Pty Ltd employed under AG2018/6625 Peninsula Transit P/L Enterprise Agreement 2018.

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 Peninsular Transit Pty Ltd (the Respondent).

On 7 March 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 Bob Lean 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.

An order has been separately issued in PR739104.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, under the leadership of Deputy President Clancy, recently addressed a case between the Transport Workers' Union of Australia and Peninsula Transit Pty Ltd. This case involved a request by the union for a protected action ballot concerning certain employees of Peninsula Transit Pty Ltd. The application was made pursuant to Section 437 of the Fair Work Act 2009, seeking approval for a ballot related to the employees under the AG2018/6625 Peninsula Transit P/L Enterprise Agreement 2018.

The central legal issue that the court needed to resolve was whether the union had fulfilled the necessary criteria to proceed with the ballot, including proving that they had genuinely attempted to negotiate with the employer and that the appropriate notification period had elapsed. The court had to ensure that the union's request was in accordance with Section 443(1) of the Fair Work Act 2009, which outlines the procedural requirements for such applications.

After reviewing the evidence, Deputy President Clancy concluded that the union had met the necessary criteria for proceeding with the ballot. This included the union's declaration by Mr. Bob Lean, which demonstrated the union's efforts in bargaining with the employer and their continued attempt to reach an agreement. Given that the employer did not object to the application, the court determined that there was sufficient ground to grant the union's request. Consequently, the court issued an order to proceed with the ballot as requested by the union.

This decision underscores the importance of meeting the legislative requirements when seeking a protected action ballot under the Fair Work Act. The court's analysis was thorough, considering the union's efforts and the employer's lack of objection, ultimately leading to the approval of the union's application.

Transport Workers' Union of Australia v Peninsula Transit Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established