Transport Workers' Union of Australia v Re.Cycle (Sunshine Coast) Pty Ltd

[2025] FWC 2077

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v

Re.Cycle (Sunshine Coast) Pty Ltd

(B2025/1141)

COMMISSIONER SIMPSON

BRISBANE, 18 JULY 2025

Proposed protected action ballot of employees of Re.cycle (Sunshine Coast) Pty Ltd

This is an application by the Transport Workers’ Union of Australia (TWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Re.Cycle (Sunshine Coast) Pty Ltd (Re.Cycle or Employer).

On 16 July 2025, the Employer submitted an objection to two questions of the ballot. The matter was allocated to me for hearing of the contest. On 17 July 2025, I issued a notice of listing for hearing on 18 July 2025. Later, on 17 July 2025, the Employer withdrew its objection.

In the circumstances, I have decided to delist the hearing and determine the matter on the papers.

On the basis of the material before me, including the declaration of Shane Pierpoint, TWU Organiser, setting out the steps taken by the TWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Re.Cycle, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 7 August 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR789742.

A s.448A compulsory conciliation conference will be conducted in this matter. An Order will be issued requiring the attendance of all bargaining representatives for the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

COMMISSIONER

[1] This is, in effect, 14 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia (TWU) applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of Re.Cycle (Sunshine Coast) Pty Ltd. The Employer had initially objected to two questions of the ballot but later withdrew its objection, leading to the delisting of the hearing and a decision on the papers. The TWU's application was made under section 437 of the Fair Work Act 2009, seeking to conduct a ballot to potentially authorise protected industrial action.

The legal issue for the Commission to decide was whether the TWU had satisfied the requirements under section 443 of the Act to conduct a ballot. This involved confirming that the TWU had genuinely been trying to reach agreement with the Employer and that all notification times and procedural requirements were met. The Commission also needed to determine a closing date for the voting period as per section 443(3)(c) of the Act.

The Commission found that the TWU had fulfilled all necessary requirements, including demonstrating genuine bargaining efforts and selecting a certified agent to conduct the ballot. Democratic Outcomes Pty Ltd (CiVS) was approved to conduct the ballot. The Commission set the closing date for voting as 7 August 2025, effectively 14 working days from the making of the Order. Additionally, the Commission mandated a compulsory conciliation conference and required the parties to attend prepared for meaningful negotiations.

The Commission issued an Order for the ballot to proceed with the specified closing date and mandated a conciliation conference. This decision authorised the TWU to conduct the protected action ballot and set the stage for further negotiations under the auspices of the Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established