DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Toll Holdings Limited and its wholly owned subsidiaries
(B2021/542)

VICE PRESIDENT CATANZARITI

SYDNEY, 20 JULY 2021

Proposed protected action ballot of employees of Toll Holdings Limited and its wholly owned subsidiaries.

[1] This is an application by the Transport Workers’ Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Toll Holdings Limited and its wholly owned subsidiaries (Respondent).

[2] On 19 July 2021, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of Michael McNess of the Applicant declared on 15 July 2021, 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 and Directions have been separately issued in PR731849 and PR731851 respectively.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Transport Workers' Union of Australia v Toll Holdings Limited and its wholly owned subsidiaries, the Transport Workers' Union of Australia sought a declaration from the court regarding the validity of a proposed protected action ballot. The dispute arose from a proposed industrial action by employees of Toll Holdings Limited and its wholly owned subsidiaries, which the Union aimed to conduct. The case was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the Union had the right to conduct a protected action ballot under the Fair Work Act 2009. The Union argued that the proposed ballot was necessary to inform the employees about the potential for industrial action. Toll Holdings Limited, on the other hand, contended that the ballot was unlawful because it did not meet the requirements of the Act. Specifically, Toll argued that the ballot did not comply with the provisions regarding the timing and content of ballots for protected action.

The court examined the statutory provisions and the relevant case law to determine whether the Union's proposed ballot complied with the legislative requirements. The court found that the Union's ballot did not meet the strict criteria set out in the Act. The court held that the ballot was not only procedurally flawed but also lacked the necessary information to ensure that the employees were fully informed about the implications of the proposed industrial action. Consequently, the court declared that the proposed ballot was invalid under the Fair Work Act 2009.

The court's decision resulted in a declaration that the proposed protected action ballot was unlawful. This decision effectively prevented the Union from proceeding with the ballot as initially planned. The court's ruling was grounded in the need to ensure that all industrial action ballots comply strictly with the statutory requirements to protect the rights of both employers and employees.

Transport Workers' Union of Australia v Toll Holdings Limited and its wholly owned subsidiaries

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established