Transport Workers' Union of Australia v Star Track Express Pty Limited and Star Track Retail Pty Limited

[2021] FWC 4885

[2021] FWC 4885

FAIR WORK COMMISSION

DECISION

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

Transport Workers' Union of Australia
v
Star Track Express Pty Limited and Star Track Retail Pty Limited
(B2021/638)

COMMISSIONER CAMBRIDGE SYDNEY, 12 AUGUST 2021

Proposed protected action ballot of employees of Star Track Express Pty Limited and Star Track Retail Pty Limited.

[1] On 6 August 2021, the Transport Workers' Union of Australia (TWU), made an application for a Protected Action Ballot Order (PABO). The application was made pursuant to section 437 of the Fair Work Act 2009 (the Act). The application was made in respect of members of the TWU who are employees of Star Track Express Pty Limited and Star Track Retail Pty Limited (the employers) and whose employment is to be regulated by a proposed agreement to replace the Star Track Express Pty Limited and StarTrack Retail Pty Limited – Transport Workers’ Union Fair Work Agreement 2017-2020 and the StarTrack Transport Workers’ Union Enterprise Agreement NSW/ACT 2018.

[2] The application seeks a ballot of employees of the employer who are members of the TWU who would be covered by a proposed enterprise agreement. The application was supplemented with the Statement of Gavin Webb (the Statement) dated 6 August 2021. In summary, the Statement provided information about events involving attempts made by the TWU to reach agreement with the employer on the terms of a proposed enterprise agreement.

[3] The Fair Work Commission (the Commission) received correspondence dated 9 August 2021, from lawyers acting for the employers advising that the employers opposed the application for a PABO. Consequently, the application was listed for a Hearing by video link before the Commission on 12 August 2021, at which time the Commission granted permission pursuant to s. 596 of the Act, for the Parties to be represented by lawyers or paid agents. At the Hearing the following appearances were recorded:

Mr P Boncardo, barrister, appearedfor TWU;

Mr S Woodbury, solicitor from Ashurst Australia lawyers,appeared for the employers.

[4] The determination of this matter is primarily governed by the provisions of section 443 of the Act. Section 443 is in the following terms:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[5] At the Hearing, Mr Boncardo who appeared for the TWU, provided evidence which included the Statement and Declaration of Mr Webb that accompanied the application, together with a statement in reply dated 11 August 2021, of Gavin Webb the TWU’s Chief Legal Officer (the Webb reply statement). The Webb reply statement relevantly asserted that particular claims that had been advanced by the TWU and which were matters that the employers had asserted to be non-permitted matters, had not been identified as such by the employers during the enterprise bargaining meetings. Further, the Webb reply statement asserted that the particular claims which were asserted to be non-permitted matters were matters that were aspirational in nature and, it was submitted, would not impose any binding obligations on the employers.

[6] Mr Woodbury who appeared for the employers, introduced evidence in the form of a statement dated 10 August 2021, of Adam William Moulton, the employers’ Head of Workplace Relations, People & Culture (the Moulton statement). The Moulton statement relevantly asserted that it was the employers’ view that the logs of claims which had been advanced by the TWU during enterprise bargaining that had involved meetings throughout April to July 2021, included matters which he described as non-permitted matters.

[7] Consequently, the most significant aspect upon which the employers opposed the PABO application involved the assertion that the TWU had not been, and was not, genuinely trying to reach an agreement with the employers because it had advanced and maintained claims in respect of matters that could not be included in any enterprise agreement (the non-permitted matters). According to the submissions made on behalf of the employers, the non-permitted matters could not be included in the enterprise agreement because they did not pertain to the relationship between the employers and its employees, and/or the employers and the TWU.

[8] Mr Boncardo made submissions which challenged the employers’ opposition to the PABO application particularly in respect to the assertion that the purported non-permitted matters should lead the Commission to find that the TWU had not been, and was not, genuinely trying to reach agreement with the employers. Mr Boncardo stressed that the employers had not previously advised the TWU of any concerns regarding the purported non-permitted matters.

[9] Notwithstanding the contest regarding the purported non-permitted matters, during the Hearing, Mr Boncardo advised that he had received instructions that the TWU would withdraw particular claims that had been identified as purported non-permitted matters. In view of this development, Mr Woodbury sought an adjournment of the proceedings in order to obtain instructions regarding any variation to the employers’ position. Following the adjournment, Mr Woodbury advised that in view of the TWU withdrawing particular claims regarding purported non-permitted matters, the employers no longer opposed the PABO application.

[10] The Commission is satisfied that the application has been made in accordance with section 437 of the Act. Further, the Commission is satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employers of the employees who are to be balloted. In addition, the Commission is satisfied that the requirements of sections 438 and 440 of the Act have also been met.

[11] Therefore, pursuant to subsection 443 (1) of the Act, the Commission must make a Protected Action Ballot Order. The Order shall be made in the terms as broadly sought by the TWU. Accordingly, an Order [PR732648] shall be issued separately.

COMMISSIONER

Appearances:

Mr P Boncardo, Counsel with Ms L Biviano from the Transport Workers' Union of Australia appeared for the Applicant.

Mr S Woodbury, Solicitorand Ms R Kruger of Ashurst Australia appeared for the employers.

Hearing details:

2021.
Sydney:
August, 12 (video hearing).

Printed by authority of the Commonwealth Government Printer

<PR732644>