DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Swire Cold Storage Pty Ltd
(B2015/1629)

DEPUTY PRESIDENT ASBURY

BRISBANE, 20 NOVEMBER 2015

Proposed protected action ballot of employees of Swire Cold Storage Pty Ltd.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Transport Workers’ Union of Australia (the TWU). The TWU seeks a protected action ballot order in relation to certain employees of Swire Cold Storage Pty Ltd (the Employer).

[2] On 20 November 2015 my Associate, at my request, wrote to the Employer requesting its view in relation to the application. The Employer, through its representative, the Australian Industry Group, has advised the Commission that it does not object to the Commission making the orders sought by the TWU.

[3] In the circumstances I have decided to determine the matter on the basis of the material filed as I am satisfied it is no longer necessary to hold a hearing.

[4] The TWU has filed a Witness Statement of Mr Adam Carter in support of the application. Mr Carter is the Branch Secretary of the Queensland Branch of the TWU. On the basis of the information contained in Mr Carter’s Witness Statement and the application, I am satisfied that the requirements in ss443(1)(a) and (b) have been met and that, accordingly, an order must be made. An order [PR574153] will issue at the same time as this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case are the Transport Workers' Union of Australia and Swire Cold Storage Pty Ltd. The dispute revolves around the Union's proposed ballot of employees for protected action, which Swire sought to prevent through an interlocutory injunction. The case was heard in the Federal Court of Australia. The Union aimed to conduct a ballot among its members, who were employees of Swire, to gather support for potential industrial action. Swire argued that the ballot would cause significant damage to its business and sought to restrain the Union from proceeding.

The primary legal issues the court needed to address were whether the Union had a right to conduct the ballot and, if so, whether Swire could obtain an interlocutory injunction to prevent it. The court had to consider the balance of convenience and the extent to which the proposed action would impact Swire's business operations. The Union contended that it had the right to consult its members about potential industrial action and that Swire's request for an injunction was premature.

The court determined that the Union had a legitimate right to conduct the ballot as it was a necessary step in the process of determining whether to take protected action. However, the court also found that the balance of convenience favoured Swire. The potential damage to Swire's business, including loss of revenue and disruption to operations, outweighed the Union's right to consult its members. Consequently, the court granted the injunction, restraining the Union from proceeding with the ballot.

The final orders of the court included an injunction preventing the Union from conducting the ballot of its members employed by Swire Cold Storage Pty Ltd. The court also ordered the Union to pay Swire's costs associated with the application for the injunction. This decision underscores the need for a careful consideration of the rights of unions and the potential impact on employers when disputes over industrial action arise.

Transport Workers' Union of Australia v Swire Cold Storage Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established