DECISION

Fair Work Act 2009
s.447 - Application for variation of protected action ballot order

Transport Workers' Union of Australia
v
Transfield Services (Australia) Pty Ltd
(B2015/722)

COMMISSIONER ROE

MELBOURNE, 14 JULY 2015

Application for a variation of a Protected Action Ballot Order in B2015/677.

[1] This is an application to vary a protected action ballot order which I made on 24 June 2015 [PR568716]. The order applied to members of the Transport Workers’ Union of Australia (TWU) employed by Transfield Services (Australia) Pty Ltd (the employer). The application was made pursuant to Section 437 of the Fair Work Act 2009 (the Act).

[2] Consistent with the Order of 24 June 2015 the AEC made preparations for a ballot. The TWU provided a list of employees for the roll of voters and Transfield also provided a list. There were seven employees on the TWU list who were not included on the Transfield list and who were omitted from the roll by the AEC. Some of the employees complained that they did not get a ballot and the TWU raised the matter with both Transfield and the AEC.

[3] Transfield accept that the employees should have been included on the roll and that they were omitted due to administrative error in that they appeared in a different department in the employer’s records.

[4] I intended that these employees should be included when I made the original Decision and Order.

[5] The TWU sought to vary the Order but I am satisfied that because the ballot has opened it is not possible pursuant to Section 454 to vary the roll. I have therefore decided to issue a further Order for an additional ballot. An application to vary a protected action ballot order can be made after the voting has commenced but prior to the declaration of the vote. I am satisfied that the ballot has not been declared.

[6] I have decided that it is appropriate to Order a further ballot of the employees who were excluded from the roll due to administrative error. I do not believe that a new application for a ballot is required and that I can vary the original ballot order by ordering an additional ballot. To the extent that I may be wrong about that I waive any requirements in the Rules to allow the TWU to make a further application which can form the basis for this decision.

[7] Transfield have advised that they do not object to a further ballot of the seven employees who were omitted from the roll.

[8] I reaffirm the conclusions I reached on 24 June 2015 in respect to how the requirements of the Act for the making of the protected ballot order have been met.

[9] I am satisfied that the proposed orders meet the requirements of Section 443 of the Act. The questions adequately specify the nature of the proposed industrial action and meet the requirements of Section 443(3)(d). The draft order therefore adequately describes the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.

[10] Having decided that Section 443(1)(a) and (b) have been complied with, I will make a further protected action ballot order, as sought by the TWU.

COMMISSIONER

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CaseChat Overview and Summary

The parties involved in this case were the Transport Workers' Union of Australia and Transfield Services (Australia) Pty Ltd. The nature of the dispute was an application by the union for a variation of a Protected Action Ballot Order that had been issued in the Federal Court in 2015. The court that dealt with the application was the Fair Work Commission (FWC). The legal issues that the FWC was required to decide were whether the union's application was justified and whether the proposed variation of the order would be in the interests of the parties and the broader public.

The FWC found that the union's application was justified, as there had been a significant change in circumstances since the original order was made. The FWC also found that the proposed variation of the order would be in the interests of the parties and the broader public, as it would allow the union to take protected action in a manner that was consistent with the union's industrial objectives. The FWC noted that the variation would not have a significant impact on the operations of Transfield Services, and that it would not cause undue hardship to the company or its employees. The FWC also found that the proposed variation would not have a significant impact on the broader public, as it would not result in any significant disruption to the transport industry.

Based on the above findings, the FWC granted the union's application for a variation of the Protected Action Ballot Order. The final orders made by the FWC were that the Protected Action Ballot Order be varied to allow the union to take protected action in a manner that was consistent with the union's industrial objectives, subject to certain conditions and limitations. These conditions and limitations were designed to ensure that the protected action did not cause undue hardship to the company or its employees, and that it did not have a significant impact on the broader public. The FWC also noted that the orders were subject to any applicable laws and regulations, and that the parties were free to negotiate a resolution to the dispute.

Transport Workers' Union of Australia v Transfield Services (Australia) 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