Transport Workers' Union of Australia v Point 2 Point Secure Pty Ltd

[2022] FWC 1767

[2022] FWC 1767

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Point 2 Point Secure Pty Ltd

(B2022/634)

COMMISSIONER HUNT BRISBANE, 11 JULY 2022

Proposed protected action ballot of employees of Point 2 Point Secure Pty Ltd

1. The Transport Workers’ Union of Australia (the TWU, the Applicant) has made an application under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Point 2 Point Secure Pty Ltd (the Respondent). The application was accompanied by a Form F34B statutory declaration of Mr James Wilkinson, TWU Organiser.

1. The Respondent notified an objection to the application. Accordingly, a hearing by video was arranged for 11 July 2022. However, on 7 July 2022, the Respondent wrote to my chambers advising that the parties have reached agreement in respect to the objection, as discussed below.

1. On the basis of the material before me, including the statutory declaration of Mr Wilkinson, setting out the steps taken by the TWU in bargaining with the Respondent and confirming that the TWU has been, and is, genuinely trying to reach agreement with the Respondent, I am also satisfied that there is a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the Act have been met.

1. I am satisfied that the TWU has given notice in accordance with section 440 of the Act.

1. The parties reached a consent position during private discussions regarding the period of written notice referred to in s.414(2)(a) of the Act being longer than three working days for the questions within the order. The parties considered it appropriate, having regard to the nature of the industry that the Respondent operates in, for the Respondent to be provided with five working days’ notice. In correspondence dated 11 July 2022, the TWU confirmed its consent to that position. 

1. Section 443(5) of the Act gives the Commission the discretion, where it is satisfied that there are exceptional circumstances justifying the period of written notice being longer than three days, to specify a longer period of up to seven working days’ notice.

1. In my view, specifying a longer period of notice for the questions within the Order is justified by the particular exceptional circumstances in this case as detailed in email of Mr Blake Byrne, Workplace Relations Manager of the Respondent sent to the Fair Work Commission on 4 July 2022, particularly ensuring the safety of the Respondent’s customers premises and employees and also the ability of the Respondent to put contingencies in place to ensure the collection of currency in the general population.

1. The TWU also sought that a person other than the Australian Electoral Commission (AEC) 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 Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of  the  protected  ballot  agent  for  CiVS,  and  that  he  has  relevant  experience  in conducting protected action ballots.

1. I  am  satisfied  that  CiVS  is  a  fit  and  proper  person  to  conduct  the  ballot.  I  am  also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

1. Therefore I appoint CiVS as the protected action ballot agent.

1. The Order [PR743547] will be issued concurrently with this Decision.

COMMISSIONER

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