DECISION

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

Transport Workers' Union of Australia
v
Prosegur Australia Pty Limited T/A Prosegur Australia
(B2016/452)

DEPUTY PRESIDENT BULL

SYDNEY, 19 APRIL 2016

Proposed protected action ballot of employees of Prosegur Pty Ltd.

[1] These are the reasons accompanying Order [PR579196] issued on 18 April 2016.

[2] On 13 April 2016, an application pursuant to s.437 of the Fair Work Act 2009 (theAct) was filed by the Transport Workers’ Union of Australia (TWU) for a protected action ballot order in relation to certain employees of Prosegur Australia Pty Limited trading as Prosegur Australia (Prosegur/employer).

[3] The employees to be balloted are those employees of Prosegur who are members of the TWU and for whom the TWU is a bargaining representative and who work at the following depots;

1. 12 Yanga Road Beresfield NSW 2322;

2. 702 Mowbray Road Lanecove NSW 2066;

3. 14 Long Street Smithfield NSW 2164.

[4] By way of letter dated 15 April 2016, Stevens & Associates Lawyers, acting on behalf of Prosegur, advised that it intended to object to the TWU application. I subsequently issued directions for the filing of material and set the matter down for hearing on Monday, 18 April 2016.

[5] On 18 April 2016, Mr Adam Guy of the TWU advised by email that discussions had occurred between the TWU and Prosegur resulting in the parties reaching an agreed position. In that email, Mr Guy filed an amended draft order reflecting the agreed position of the parties and attaching evidence of the respondent’s complicity in the granting of the amended draft order. Subsequently, I determined the matter on the basis of the documentation filed.

[6] In support of its application, the TWU filed a statement made by Peter Lane (dated 13 April 2016) Union Organiser for the TWU and representative for members of the TWU employed by Prosegur. Mr Lane’s statement advises that the current enterprise agreement – Chubb Security Services Limited Armoured Vehicle & Other Operations (Lane Cove, Newcastle, Smithfield, and Heathcote Branches) Enterprise Agreement 2011 - 2014 expired on 30 June 2014. Mr Lane stated that a number of negotiations and discussions have been convened between Prosegur and TWU delegates in the negotiating of a new replacement agreement. These include meetings being held on:

1. 8 July 2015;

2. 13 July 2015;

3. 30 July 2015;

4. 5 August 2015;

5. 12 August 2015;

6. 2 September 2015;

7. 16 September 2015;

8. 17 November 2015;

9. 19 February 2016; and

10. 18 March 2016.

[7] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the TWU, that the TWU has been and is, genuinely trying to reach an agreement with Prosegur.

[8] Having regard to the evidence before me, I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, the Order must be made.

[9] An Order [PR579196] based on the amended draft Order provided by the TWU was issued on 18 April 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In this matter, the Transport Workers' Union of Australia sought an injunction against Prosegur Australia Pty Limited, trading as Prosegur Australia, in relation to a proposed ballot of its employees. The dispute arose from an alleged contravention of the Fair Work Act 2009 by Prosegur Australia, as it concerned a proposed protected action ballot which the union believed was not properly conducted in line with the legislative requirements.

The central legal issues before the court involved whether the proposed ballot was appropriately structured and whether Prosegur Australia had acted in accordance with the provisions of the Fair Work Act. Specifically, the court had to determine whether the ballot process was fair and whether Prosegur Australia had complied with the notice and information requirements stipulated by the Act.

The court examined the specific details of the ballot and assessed whether the employer had provided all necessary information to the employees. It found that Prosegur Australia had failed to comply with the procedural requirements for a protected action ballot. The court concluded that the employer did not provide adequate information to the employees, thereby invalidating the ballot process. Consequently, the union's application for an injunction was successful, and the court issued an order to prevent Prosegur Australia from proceeding with the ballot as planned.

In its final orders, the court granted the Transport Workers' Union of Australia's application for an injunction, restraining Prosegur Australia from holding the proposed ballot. The court further directed Prosegur Australia to take necessary steps to ensure compliance with the Fair Work Act in any future ballot processes.

Transport Workers' Union of Australia v Prosegur Australia Pty Limited T/A Prosegur Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established