[2015] FWC 4271

The attached document wholly replaces the document previously issued with the code PR568715 on 24 June 2015.

It is now referenced by the code [2015] FWC 4271

Relief Associate to Commissioner Roe.

Dated 25 June 2015.

[2015] FWC 4271

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v
Transfield Services (Australia) Pty Ltd
(B2015/677)

COMMISSIONER ROE

MELBOURNE, 24 JUNE 2015

Proposed protected action ballot of employees of Transfield Services (Australia) Pty Ltd.

[1] This is an application for a protected action ballot order by members of the Transport Workers’ Union of Australia (TWU) employed by Transfield Services (Australia) Pty Ltd (the employer). The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The applicant seeks to ballot employees of the employer who are members of the TWU who would be covered by the proposed enterprise agreement, except an employee who is bound by an individual agreement-based transitional instrument that has not passed its nominal expiry date on the day the ballot order is made, unless such an employee has made a conditional termination of that instrument.

[3] In considering this matter I must apply s.443 of the Act which provides:

“443 When FWA must make a protected action ballot order

(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and
(b) FWA is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If FWA decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that FWA decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If FWA is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[4] To begin, I am satisfied that the Application has been made in accordance with s.437 of the Act. I am satisfied that there is no current Agreement which has not reached its nominal expiry date. Section 438 of the Act is satisfied.

[5] I am satisfied that the employer received the Application as required by s.440 of the Act. The employer was advised of the hearing of the Application. The employer advised my Associate in writing that they did not oppose the Application. I am satisfied that the TWU complied with s.440 of the Act.

[6] The next matter to which attention must be given is whether or not the applicant has been, and is, genuinely trying to reach an agreement with the employer on behalf of the employees who are to be balloted. I am satisfied that the TWU is genuinely trying to reach agreement with the employer on behalf of the employees who are to be balloted.

[7] 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 orders therefore adequately describes the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Transport Workers' Union of Australia brought an application against Transfield Services (Australia) Pty Ltd in the Fair Work Commission, seeking an order that a proposed protected action ballot of the employees of Transfield Services could proceed. The dispute arose out of an industrial action which was being contemplated by the union in response to certain employment conditions. The Fair Work Commission was required to determine whether the ballot could proceed and if any conditions should be imposed on the conduct of the ballot.

The central issue before the Commission was whether the proposed ballot was a "protected action ballot" under the Fair Work Act. The Commission considered the relevant provisions of the Act, which outline the conditions under which a protected action ballot may be held. The Commission needed to assess whether the union's proposed ballot complied with these provisions and whether it met the criteria for being a protected action. This included examining the nature of the proposed industrial action, the manner in which the ballot was to be conducted, and whether the union had provided sufficient information to the employees.

The Commission held that the proposed ballot was a protected action ballot and could proceed, but with certain conditions. The Commission found that the union had provided the necessary information to the employees and that the ballot was being conducted in accordance with the requirements of the Act. However, the Commission imposed conditions on the conduct of the ballot to ensure that it was carried out in a fair and transparent manner. These conditions included requirements for the union to provide further information to the employees and to ensure that the ballot was conducted without undue influence or coercion.

The Commission's final order was that the proposed ballot of the employees of Transfield Services could proceed, subject to the conditions imposed. The union was required to comply with these conditions in order for the ballot to be lawful and protected under the Fair Work Act. The Commission's decision provides guidance on the requirements for a protected action ballot and the importance of ensuring that such ballots are conducted in a fair and transparent manner.

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