Transport Workers' Union of Australia v Rivet Energy Aviation Pty Ltd

[2022] FWC 2957

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Rivet Energy Aviation Pty Ltd

(B2022/1672)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 8 NOVEMBER 2022

Proposed protected action ballot of employees of Rivet Energy Aviation Pty Ltd

This is an application by the Transport Workers’ Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Rivet Energy Aviation Pty Ltd (Respondent).

The Respondent initially advised my Chambers that it objected to the application on the basis that the Applicant has not been, and is not, genuinely trying to reach an agreement. I determined to list the matter for a hearing on 8 November 2022 but in subsequent correspondence, the Respondent advised that it no longer opposed the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Mr Dissio Markos of the Applicant setting out the steps taken by it in bargaining with the Respondent and 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 s.443(1) of the Act have been met.

An order has been separately issued in PR 747708.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers’ Union of Australia applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of Rivet Energy Aviation Pty Ltd. Initially, the Respondent objected to the application, contending that the Applicant had not been genuinely attempting to reach an agreement. However, the Respondent later withdrew its opposition, allowing the matter to proceed on the papers. The Deputy President, Clancy, was tasked with determining the matter based on the available evidence, which included a declaration from Mr Dissio Markos of the Applicant, outlining the steps taken by the Union in bargaining with the Respondent and affirming the Union's genuine efforts to reach an agreement.

The central legal issue in this case was whether the Transport Workers’ Union of Australia had fulfilled the necessary requirements to hold a protected action ballot under section 437 of the Fair Work Act 2009. Specifically, the court needed to assess whether the Union had genuinely tried to reach an agreement with Rivet Energy Aviation Pty Ltd and whether the notification time in relation to the proposed agreement had been met, as required by section 443(1) of the Act.

After reviewing the evidence, Deputy President Clancy concluded that the Union had indeed been genuinely trying to reach an agreement with the Respondent. The declaration from Mr Dissio Markos provided sufficient evidence to support this finding. Furthermore, the Deputy President determined that the notification time in relation to the proposed agreement had been satisfied, and all requirements under section 443(1) of the Act had been met. Consequently, the Deputy President issued an order in PR 747708, permitting the Union to proceed with the protected action ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established