Transport Workers' Union of Australia v Toll Transport Pty Ltd Summary

[2022] FWC 3184

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Toll Transport Pty Ltd

(B2022/1776)

VICE PRESIDENT CATANZARITI

SYDNEY, 1 DECEMBER 2022

Proposed protected action ballot of employees of Toll Transport Pty Ltd

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 Transport Pty Ltd (Respondent).

On 30 November 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

On the basis of the material before me, including the statutory declaration of Peter Katar of the Applicant declared on 28 November 2022, 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.

An Order has been separately issued in PR748514.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) dealt with an application by the Transport Workers' Union of Australia (the Applicant) for a protected action ballot order concerning certain employees of Toll Transport Pty Ltd (the Respondent). The application was made under section 437 of the Fair Work Act 2009, seeking to organise a ballot for proposed protected action. Toll Transport did not oppose the application, leading the FWC to decide the matter on the papers without a hearing. The union's application was based on its assertion that it had been genuinely attempting to reach an agreement with the employer and that the statutory notification period for the proposed agreement had been met.

The primary legal issue before the FWC was whether the union had satisfied the conditions required under the Fair Work Act for conducting a protected action ballot. Specifically, the court had to determine if the union had genuinely been attempting to negotiate with the employer and if the statutory notification period had been correctly observed. The union needed to demonstrate that it had taken all necessary steps to reach an agreement and that the proposed industrial action was a result of the inability to resolve the dispute through negotiation.

The FWC Vice President Catanzariti found that the union had met the requirements set out in section 443(1) of the Fair Work Act. The union's statutory declaration, along with the evidence provided, showed that it had genuinely been trying to reach an agreement with the employer. The declaration detailed the steps taken during the bargaining process and confirmed that the notification period had been adhered to. As the Respondent did not oppose the application and the union's assertions were substantiated, the FWC determined that the union had fulfilled the necessary conditions to conduct the ballot.

The FWC issued an order in PR748514, permitting the union to proceed with the ballot as requested. This decision ensures that the union's ability to organise and conduct a protected action ballot is upheld, provided that the procedural requirements under the Fair Work Act are met.

Transport Workers' Union of Australia v Toll Transport Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established