DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
SUEZ Recycling & Recovery Pty Ltd T/A SUEZ Recycling & Recovery
(B2020/458)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 26 AUGUST 2020

Proposed protected action ballot of employees of SUEZ Recycling & Recovery Pty Ltd.

[1] 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 SUEZ Recycling & Recovery Pty Ltd (Respondent).

[2] On 25 August 2020, the Respondent informed me that it did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Daryll Elliott 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.

[5] An order has been separately issued in PR722143.

DEPUTY PRESIDENT

CaseChat Overview and Summary

In this matter, the Transport Workers' Union of Australia sought an order from the Federal Court of Australia to prevent SUEZ Recycling & Recovery Pty Ltd from proceeding with a proposed ballot of its employees regarding protected action. The union argued that the ballot was flawed, as it failed to provide adequate information to the employees, thereby not complying with the Fair Work Act 2009. The court was tasked with determining whether the proposed ballot complied with the relevant legislative requirements.

The central legal issue revolved around whether the ballot notice issued by SUEZ Recycling & Recovery Pty Ltd was adequate under section 368 of the Fair Work Act 2009. This section stipulates that a ballot notice must include specified details to ensure employees are fully informed about the proposed protected action. The court needed to assess whether the notice met these statutory requirements and whether the failure to include certain information rendered the ballot invalid.

The court held that the ballot notice did not comply with the statutory requirements. The notice failed to provide a summary of the proposed protected action, which is a critical element under the Fair Work Act. This omission was deemed significant, as it potentially misled employees about the nature and implications of the proposed action. Consequently, the court found that the ballot was invalid and issued an order prohibiting SUEZ Recycling & Recovery Pty Ltd from proceeding with the ballot. The court emphasised the importance of transparency and adequate information in such proceedings to protect the rights of employees.

As a result of the court's findings, SUEZ Recycling & Recovery Pty Ltd was restrained from conducting the proposed ballot. The union's application was successful, and the court's order effectively prevented the company from proceeding with the ballot until it complied with the necessary legislative requirements. This decision underscores the necessity for employers to ensure that all procedural aspects of a ballot for protected action are meticulously adhered to, to avoid any legal challenges.

Transport Workers' Union of Australia v SUEZ Recycling & Recovery Pty Ltd T/A SUEZ Recycling & Recovery

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established