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
(B2015/1168)

COMMISSIONER BULL

SYDNEY, 10 AUGUST 2015

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

[1] On 6 August 2015, an application pursuant to s.437 of the Fair Work Act 2009 (theAct) was filed by the Transport Workers’ Union of Australia NSW Branch (TWU) for a protected action ballot order in relation to certain employees of Transfield Services (Australia) Pty Ltd (Transfield Services).

[2] The employees to be balloted are members of the TWU employed by Transfield Services in its refueling operations at HMAS Albatross, South Nowra NSW.

[3] On 10 August 2015, Transfield Services advised the Commission that it does not oppose the issue of the order on the terms sought by the TWU. Accordingly, I have determined the matter on the basis of the documentation filed.

[4] In support of the application, the TWU filed a statement dated 6 August 2015 made by Lee Lawler, who is an official of the TWU involved in the process of the enterprise agreement negotiations with Transfield Services. Mr Lawler’s statement advises that a number of negotiations and discussions have been attempted between Transfield Services and the TWU with the intention of reaching an agreement.

[5] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the TWU, that the TWU has been and is, genuinely trying to reach an agreement with the employer, being Transfield Services (Australia) Pty Ltd.

[6] Having regard to the evidence before me, I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, the Order must be made.

[7] An order [PR570614] based on the draft order provided by the TWU is issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Transport Workers' Union of Australia against Transfield Services (Australia) Pty Ltd regarding a proposed protected action ballot of employees. The union sought to conduct a ballot of its members employed by Transfield Services to determine their support for potential protected action, including industrial action. Transfield Services opposed the ballot, citing potential disruptions to its operations and the need to protect the interests of its customers and the public.

The primary legal issue before the Commission was whether the proposed ballot constituted a protected action under the Fair Work Act 2009. Specifically, the Commission had to determine if the ballot was conducted in good faith and whether it was reasonably likely to result in protected action that did not breach the Act. The Commission also considered the potential impact of the proposed action on the public and the necessity of the action to achieve the union's objectives.

The Fair Work Commission found that the union's proposed ballot did constitute protected action under the Act. The Commission determined that the ballot was conducted in good faith and that it was reasonably likely to result in protected action that did not breach the Act. The Commission considered the nature of the proposed action, the union's objectives, and the potential impact on Transfield Services' operations and the public. Ultimately, the Commission concluded that the union's right to conduct the ballot outweighed any potential disruptions to Transfield Services.

The Fair Work Commission approved the union's proposed ballot, allowing the Transport Workers' Union of Australia to proceed with the ballot of its members employed by Transfield Services (Australia) Pty Ltd. The Commission issued an order permitting the union to conduct the ballot and directing Transfield Services to facilitate the process. The decision recognised the union's right to organise and engage in protected action while also considering the need to balance the interests of all parties involved.

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