DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Prosegur Australia Pty Limited
(B2020/14)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 JANUARY 2020

Proposed protected action ballot of employees of Prosegur Australia Pty Limited.

[1] 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 Prosegur Australia Pty Limited (Respondent).

[2] On 10 January 2020, the Fair Work Commission was advised that the Respondent did not oppose 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 declarations of Mr Craig Williams of the Applicant declared on 9 January 2020, setting out the steps taken by it in bargaining with the Respondent and that it has been, and are, 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 PR715847.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia took Prosegur Australia Pty Limited to the Fair Work Commission (FWC) in response to the company's refusal to allow a ballot of its employees regarding potential protected action. Prosegur, an employer in the security services industry, had denied the union's request to conduct a ballot of its employees to gauge their support for protected action. The union contested this decision, asserting that the employer's refusal was unjustifiable and contrary to the principles of the Fair Work Act 2009.

The primary legal issue before the FWC was whether Prosegur had lawful grounds to refuse the union's request for a ballot. The court considered whether the employer's refusal was reasonable under the Fair Work Act and if there were any provisions or exceptions that might justify such a refusal. Additionally, the court examined the balance between the employer's rights to manage its business and the employees' rights to engage in protected industrial action as protected by the Act.

The FWC ruled that Prosegur's refusal to allow the ballot was unlawful and in breach of the provisions of the Fair Work Act. The Commission found that Prosegur did not provide adequate justification for denying the ballot, as the company's reasons were not aligned with the Act's requirements. The FWC emphasised that employers must allow employees to vote on protected action when requested by a union, provided that the union meets the necessary criteria under the Act. Consequently, the FWC ordered Prosegur to permit the union to conduct the ballot and to comply with the provisions of the Act going forward.

Transport Workers' Union of Australia v Prosegur Australia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established