Transport Workers' Union of Australia v Southlink Pty Ltd

[2022] FWC 1372

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Southlink Pty Ltd

(B2022/504)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 31 MAY 2022

Proposed protected action ballot of employees of SouthLink 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 Southlink Pty Ltd (the Respondent).

On 31 May 2022, my Associate was advised that the Respondent did not object to 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 Simon Russell 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 PR742194.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia, acting on behalf of its members, applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Southlink Pty Ltd. The union sought to conduct a ballot of its members regarding potential protected industrial action, following unsuccessful negotiations with the employer. The application was made on the basis that the union had met the statutory requirements for a protected action ballot.

The primary legal issue before the Deputy President was whether the union had satisfied the statutory prerequisites for a protected action ballot under the Fair Work Act. Specifically, the court needed to determine if the union had genuinely attempted to reach an agreement with the employer and if there was a notification period for the proposed agreement as required by section 443(1) of the Act. The union's declaration, which outlined the steps taken during negotiations and affirmed the genuine attempt to reach an agreement, was central to this determination.

The Deputy President reviewed the materials presented, including the union's declaration. The union's assertion of genuine efforts in bargaining and the absence of objection from Southlink Pty Ltd were decisive factors. The Deputy President found that the union had satisfied the statutory requirements, thus granting the application for a protected action ballot order. The decision was made on the papers without the need for a hearing.

Consequently, an order was issued allowing the union to proceed with a ballot of its members regarding the proposed industrial action. The order was separately documented under PR742194. This ruling ensures that the union can follow the legal process to potentially undertake protected action, subject to the outcomes of the ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established