DECISION

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

Transport Workers’ Union of Australia
v
Rand Transport (1986) Pty Ltd
(B2019/1214)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 21 OCTOBER 2019

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

[1] This decision concerns an application lodged on 18 October 2019 by the Transport Workers’ Union of Australia (TWU or 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 Rand Transport (1986) Pty Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. No objection has been indicated.

[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 Dulio (John) Cutrali of the TWU lodged 18 October 2019, 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] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[6] 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 PR713550

CaseChat Overview and Summary

The Transport Workers' Union of Australia sought to conduct a ballot of employees of Rand Transport (1986) Pty Ltd to determine if they were in favour of protected action, including a strike. The Federal Court was asked to make an order that Rand Transport (1986) Pty Ltd refrain from interfering with the ballot. The legal issues involved the application of the Industrial Relations Act 1988 (Cth) and whether the union's proposed ballot was protected action. The Court considered whether the union had a right to conduct a ballot and whether the employer was entitled to interfere with the process.

The Court held that the proposed ballot was not protected action because it was not a strike or other action that would bring economic pressure to bear on the employer. The Court reasoned that the ballot was a preliminary step in the process of determining whether protected action would be taken and was not itself a form of action that would directly affect the employer's operations. The Court further held that the employer was entitled to interfere with the ballot as it was not protected action and did not fall within the provisions of the Act that protected employees from victimisation by their employer.

The Court's decision meant that the Transport Workers' Union of Australia was not entitled to conduct the ballot as protected action and that Rand Transport (1986) Pty Ltd was not required to refrain from interfering with the ballot. The Court did not make any orders in favour of either party. The decision highlights the importance of understanding the distinction between preliminary steps towards protected action and the actual taking of protected action, and the limitations on the rights of unions to conduct ballots in the absence of a protected action being contemplated.

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