Transport Workers' Union of Australia v Star Track Express Pty Ltd T/A Star Track

[2018] FWC 1551

[2018] FWC 1551

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Application for protected action ballot order

Transport Workers’ Union of Australia
v
Star Track Express Pty Ltd T/A Star Track and Another
(B2018/170)

COMMISSIONER CAMBRIDGE SYDNEY, 16 MARCH 2018

Proposed protected action ballot of employees of Star Track Express Pty Ltd and Star Track Retail Pty Ltd t/as Star Track.

[1] On 9 March 2018, the Transport Workers’ Union of Australia (TWU), made an application for a protected action ballot Order. 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 Ltd. and Star Track Retail Pty Ltd (the employers) whose employment is to be regulated by a proposed agreement to replace the StarTrack Enterprise Agreement NSW/ACT 2015.

[2] The application seeks a ballot of employees of the employers who are members of the TWU who would be covered by a proposed enterprise agreement. The application was supplemented with the Statutory Declaration of Michael Collins (the Statement) dated 8 March 2018 (Exhibit 1). In summary, the statement provided information about events involving attempts made by the TWU to reach agreement with the employers on the terms of a proposed enterprise agreement.

[3] The Fair Work Commission (the Commission) received communication dated 9 March 2018, advising that the employers opposed the application for a protected action ballot Order. The application was listed for Hearing before the Commission in Sydney on 15 March 2018, at which time the following appearances were recorded:

Mr M Gibian of Counselappeared for the TWU;

Mr G Fredericks of Counsel appeared for the employers.

[4] The Commission granted permission for the TWU and the employers to be represented by lawyers or paid agents. The Commission was satisfied that the requirements of s. 596 of the Act were met because certain complexity was identified and the assistance of lawyers or paid agents would enable the matter to be dealt with more efficiently having regard for the complexity of the matter.

[5] 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.”

[6] In this instance, the employers opposed the application essentially upon the basis that the TWU had engaged in distributing misleading information to employees. The employers sought to rely upon evidence of flyers distributed, that used language such as “the battle begins” and “it’s time to fight.” In particular the employers’ complained about the alleged misrepresentations made in a particular TWU publication, attachment “CJ-8” to Exhibit 3.

[7] The employers have asserted that the TWU’s deliberate misrepresentation about the employers’ position in the bargaining, could establish proper basis upon which the Commission should conclude that the TWU was not genuinely trying to reach an agreement with the employers.

[8] Consequently, the employers submitted that the Commission could not be satisfied that the requirements of subsection 443 (1) (b) of the Act had been met. The employers contended that the TWU was not genuinely trying to reach agreement with the employers and it urged that the application be dismissed accordingly.

[9] The TWU contended that all the key items in the log of claims had been rejected by the employers. In submissions, the TWU noted that genuinely trying to reach an agreement did not mean that Parties were not permitted to adopt a firm position in the pursuit of their respective claims. The TWU further asserted that the publications that the employers complained of did not misrepresent the actual position that had been established during the bargaining.

[10] Having considered the evidence and the competing submissions, I have not been persuaded that the TWU has not been genuinely trying to reach an agreement with the employers. The totality of the evidence, when evaluated and balanced, reflects a bargaining process that could be described as fairly typical. There has been what could be described as “strong bargaining” involving exchanges of the Parties respective positions, including documented summaries, and some inaccurate aspects of publications that may not have assisted the bargaining greatly. However, the evidence has not established some absence of genuineness on the part of the TWU about its desire to reach an agreement.

[11] The state of the bargaining has been broadly reflected by the tables attached to the employers’ correspondence of 9 March 2018, attachment “NM-09” to Exhibit 2. These tables reveal that there has been some progress in the bargaining and certain key aspects have been identified as being unresolved. The evidence discloses what might be described as the usual “to and fro” in the bargaining process.

[12] The bargaining is clearly unfinished, but it has undeniably involved the genuine pursuit of a replacement enterprise agreement. I can identify no basis upon which to deny the TWU the opportunity to seek to ultimately engage in protected industrial action as part of the well understood legislative scheme upon which the enterprise bargaining regime has been established.

[13] In summary, I am satisfied that the application has been made in accordance with section 437 of the Act. Further, I am 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, I am satisfied that the requirements of sections 438 and 440 of the Act have also been met.

[14] 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 [PR601198] is issued separately.

COMMISSIONER

Appearances:

Mr M Gibian of Counsel appeared for the Transport Workers’ Union of Australia.

Mr G Fredericks of Counsel appeared for the employers.

Hearing details:

2018.

Sydney:

March 15

Printed by authority of the Commonwealth Government Printer

<PR601197>