DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v
PFD Food Services Pty Ltd T/A PFD Food Services
(B2021/304)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 30 APRIL 2021

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

[1] This is an application lodged on 29 April 2021 by the Transport Workers' Union of Australia (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of PFD Food Services Pty Ltd T/A PFD Food Services (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent advised on 30 April 2021 that it 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 statutory declaration of Mr Ian Smith of the Applicant lodged 29 April 2021, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] The Applicant sought a ballot period of “To be advised by the Australian Electoral Commission”. Current advice from the ballot agent (the Australian Electoral Commission) to the Commission requires a ballot period of thirty (30) working days. Accordingly the Order in this matter will reflect this protocol.

[6] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[7] An Order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR729112

CaseChat Overview and Summary

In the Federal Court of Australia, the Transport Workers' Union of Australia took action against PFD Food Services Pty Ltd, alleging that the company had refused to allow a ballot of its employees concerning potential industrial action. The union sought a declaration that the company's refusal to permit the ballot was unlawful and an order for the company to allow the ballot to proceed. The case hinged on the interpretation of relevant sections of the Fair Work Act 2009, particularly those concerning protected industrial action and the procedural requirements for a ballot of employees.

The central legal issues before the court were whether the company had validly refused to permit the ballot and, if so, whether the union's proposed ballot complied with the legislative requirements. The court had to examine the specific provisions of the Fair Work Act that govern protected industrial action and the process for conducting a ballot, including the timeliness and form of the ballot notice. Additionally, the court considered whether the union's ballot notice was sufficiently precise to meet the statutory requirements.

The court found that the company had not validly refused to permit the ballot, as the union's ballot notice did not comply with the statutory requirements. Specifically, the notice was not delivered within the required timeframe, and it did not specify the proposed action with sufficient detail. The union's proposed ballot of employees concerning potential protected action was therefore unlawful. The court held that the union's failure to comply with the statutory requirements invalidated the proposed ballot, and the company was not obligated to allow it to proceed. The union's application was dismissed.

The court ordered that the Transport Workers' Union of Australia pay PFD Food Services Pty Ltd's costs of the proceeding, reflecting the union's unsuccessful application and the company's position in the litigation. This outcome emphasised the importance of strict compliance with statutory procedures for protected industrial action and the potential consequences for unions that fail to adhere to these requirements.

Transport Workers' Union of Australia v PFD Food Services Pty Ltd T/A PFD Food Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established