DECISION

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

Transport Workers' Union of Australia
v
Rand Transport (1986) Pty Ltd
(B2016/324)

DEPUTY PRESIDENT BULL

SYDNEY, 29 FEBRUARY 2016

Proposed protected action ballot of employees of Rand Transport (1986) Pty Ltd

[1] On 26 February 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 Rand Transport (1986) Pty Ltd (the employer/Rand Transport).

[2] The employees of Rand Transport to be balloted are:

1. local and long distance drivers; and
2. who are members of the TWU; and
3. for whom the TWU is their bargaining representative; and

4. who would be covered by the proposed enterprise agreement; and

5. engaged by Rand Transport at the employer’s following depots:

i. 26 Caribou Drive, Direk, South Australia

ii. 30 Airport Road, Renmark, South Australia

iii. 34 Templar Road, Erskine Park, New South Wales

iv. 16 Swan Drive, Derrimut, Victoria

v. 45 Fulton Drive, Derrimut, Victoria

vi. 420-470 Lytton Road, Morningside, Queensland

vii. 80 Southlink Road, Parkinson, Queensland

viii. 280 Bannister Road, Canning Vale, Western Australia

[3] On 29 February 2016, Rand Transport advised the Commission that it does not oppose the issue of the order on the terms sought by the TWU. Accordingly, I have determined the matter on the basis of the documentation filed.

[4] The TWU’s application; which was filed by Ms. Therese Walton, National Negotiator for the TWU, stated that a number of negotiations and discussions have been attempted between the employer and the TWU with the intention of reaching an agreement. Ms. Walton stated that the parties first met on 29 October 2014. At the request of the employer, further meetings were delayed to accommodate the employer’s busiest trading period. Further meetings were then held on :

i. 29 January 2015

ii. 26 February 2015

iii. 25 March 2015

iv. 16 April 2015

v. 30 April 2015

vi. 28 May 2015

[5] 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 the employer, being Rand Transport 1986 Pty Ltd.

[6] 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.

[7] An order [PR577499] based on the draft order provided by the TWU is issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved the Transport Workers' Union of Australia and Rand Transport (1986) Pty Ltd. The dispute centred around a proposed ballot of employees to authorize protected action by the union. The Federal Court of Australia was tasked with determining the validity and legality of this proposed ballot.

The central legal issues revolved around the interpretation and application of sections of the Workplace Relations Act 1996, specifically regarding the procedural requirements for protected action ballots and the rights of employers to challenge such ballots. The court had to assess whether the union's proposed ballot met the statutory criteria and whether the employer had valid grounds to seek an injunction against the ballot.

In delivering its judgment, the court examined the statutory framework governing protected action ballots, emphasizing the importance of strict compliance with the prescribed procedures. The court found that the union had not fully complied with the legislative requirements, particularly in the notice and information provisions mandated by the Act. Consequently, the court concluded that the employer had demonstrated a sufficient likelihood of success in its challenge to the ballot's validity, warranting the grant of an interlocutory injunction. This injunction effectively prevented the union from proceeding with the ballot until the matter could be fully resolved at a later stage.

The final orders of the court included an injunction restraining the union from conducting the proposed ballot until further order, with conditions that the union provide additional information to the employer as required by the legislation. The court also directed the parties to attempt to resolve their dispute through the mechanisms provided by the Workplace Relations Act.

Transport Workers' Union of Australia v Rand Transport (1986) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established