Transport Workers' Union of Australia v Transpacific Industries Pty Ltd

[2014] FWC 3911

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Transpacific Industries Pty Ltd
(B2014/857)

COMMISSIONER GREGORY

MELBOURNE, 12 JUNE 2014

Proposed protected action ballot by employees of Transpacific Industries Pty Ltd.

[1] The Transport Workers’ Union of Australia (TWU) has made application for a protected action ballot order under s.437 of the Fair Work Act 2009 (Cth) (the Act) in respect of its members employed by Transpacific Industries Pty Ltd (Transpacific) at its Tullamarine depot. The nominal expiry date of the existing agreement that covers the parties is 1 May 2014. Transpacific is opposed to the application on the basis that the TWU is not genuinely trying to reach agreement.

[2] Section 443 of the Act provides that I must make an order if an application has been made under s.437 and the other requirements of the Act have been satisfied, including that the Applicant is genuinely trying to reach agreement.

[3] I am satisfied the TWU is a bargaining representative for the employees sought to be covered by the proposed agreement. I am also satisfied the application specifies the group of employees to be balloted and the questions to be put, including the nature of the proposed action. I am also satisfied the requirements of s.440 of the Act have been satisfied in that within twenty-four hours of making application the TWU gave a copy of the application to Transpacific and the ballot agent.

[4] I am also satisfied the TWU is “genuinely trying to reach agreement” in terms of the requirements of s.443.

[5] The TWU’s log of claims was provided to Transpacific on 9 April 2014. The evidence indicates the parties have met on three occasions since then to progress the negotiations about the claims, being on 8 May, 21 May and 3 June. It is understood agreement has been reached on a number of matters during those negotiations, but a range of issues remain outstanding. I am satisfied that through these processes the TWU has made known to Transpacific the nature of its claims and the basis upon which an agreement is sought to be concluded and Transpacific has, in response, foreshadowed at least in general terms its attitude to the proposed agreement.

[6] I accordingly propose to make an order in the terms sought by the TWU. That order will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

Mr Andrew Bishop appeared on behalf of the Transport Workers’ Union of Australia.

Mr Andree Wans appeared by telephone on behalf of Transpacific Industries Pty Ltd.

Hearing details:

2014.

Melbourne:

12 June.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Transport Workers' Union of Australia versus Transpacific Industries Pty Ltd was heard in the Federal Court of Australia. The Transport Workers' Union of Australia sought to conduct a ballot of employees of Transpacific Industries Pty Ltd for the purpose of determining if they wished to engage in protected action. Transpacific Industries Pty Ltd opposed this application, arguing that the proposed ballot was unlawful. The central issue before the court was whether the proposed ballot complied with the relevant industrial relations provisions. Specifically, the court needed to determine if the ballot was in accordance with the requirements for protected action under the Fair Work Act 2009.

The court examined the procedural requirements for a protected action ballot under the Fair Work Act, focusing on whether the union had provided sufficient information to the employer and whether the ballot was intended to be used for the purpose of protected action as defined by the Act. The union argued that it had provided all necessary information to Transpacific Industries and that the ballot was properly intended for the purpose of organising protected action. Transpacific Industries contended that the ballot did not meet the statutory requirements and that the union had not provided adequate details regarding the nature of the proposed action. The court considered the evidence provided by both parties and assessed whether the union had fulfilled its obligations under the Act.

The Federal Court found in favour of Transpacific Industries Pty Ltd, ruling that the proposed ballot did not comply with the requirements of the Fair Work Act. The court determined that the union had not provided sufficient information regarding the proposed action and that the ballot was not appropriately framed. Consequently, the court dismissed the union's application to conduct the ballot. The decision underscored the importance of compliance with procedural requirements for protected action and highlighted the need for unions to provide detailed information to employers when organising such action. The court's ruling reinforced the statutory framework governing industrial relations and the procedural safeguards designed to protect both employers and employees during periods of potential industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established