Transport Workers' Union of Australia v PFD Food Services Pty Ltd

[2022] FWC 1630

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

PFD Food Services Pty Ltd

(B2022/599)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 JUNE 2022

Proposed protected action ballot of employees of PFD Food Services Pty Ltd

This is an application by the Transport Workers’ Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of PFD Food Services Pty Ltd (Respondent).

On 22 June 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing. I have considered correspondence sent by the parties.

On the basis of the material before me, including the statutory declaration of James Wilkinson of the Applicant declared on 20 June 2022, 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 PR743047.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers’ Union of Australia has applied to the Fair Work Commission for an order allowing a ballot of its members employed by PFD Food Services Pty Ltd, to ascertain whether the members wish to take protected action. The respondent company did not oppose the application. The Commission was satisfied that the union had genuinely tried to reach an agreement with the employer and that the requirements of the Fair Work Act 2009 had been met. The Commission decided to determine the matter on the papers, without holding a hearing, and issued an order allowing the ballot to proceed.

The key legal issue before the Commission was whether the union had complied with the statutory requirements for organising a protected action ballot under the Fair Work Act 2009. The union had to demonstrate that it had been genuinely attempting to reach agreement with the employer, and that the minimum notification period had elapsed. The Commission accepted the union's evidence that these conditions had been met.

In reaching its decision, the Commission considered the union's statutory declaration and other material submitted by the parties. The union's declaration outlined the bargaining process and the efforts made to reach an agreement with the employer. The Commission was satisfied that the union had genuinely tried to reach an agreement and that the notification period had elapsed. The Commission also noted that the employer did not oppose the application.

The Fair Work Commission issued an order allowing the union to proceed with the ballot of its members employed by PFD Food Services Pty Ltd. The order was issued in accordance with section 437 of the Fair Work Act 2009. The employer did not oppose the application, and the Commission was satisfied that the union had met the statutory requirements for organising a protected action ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established