DECISION

Fair Work Act 2009
s.447—Protected action

Transport Workers' Union of Australia
v
Visa Global Logistics Pty Ltd
(B2020/813)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 10 DECEMBER 2020

Application for a variation of a Protected Action Ballot Order in B2020/764.

[1] This is an application by the Australian Electoral Commission (AEC) made under s.447 of the Fair Work Act 2009 (Act) for variation of a protected action ballot order in matter B2020/764.

[2] The AEC’s application seeks to vary the Order to the effect that the date by which voting is to close is 30 days from the date of the Order.

[3] On 10 December 2020, my Associate was advised that the Transport Workers' Union of Australia and Visa Global Logistics Pty Ltd do not object to the application.

[4] Section 447 of the Act sets out the circumstances in which the Fair Work Commission (Commission) may vary a protected action ballot order:

447 Variation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to the FWC to vary the order.

(2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.

(3) An application may be made under subsection (1) or (2):

(a) at any time before the date by which voting in the protected action ballot closes; or

(b) if the ballot has not been held before that date and the FWC consents - after that time.

(4) If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.

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

[6] Changes in the availability of staff to attend AEC offices and other workplaces because of the COVID-19 situation has necessarily affected the practical logistics for the AEC to conduct protected action ballots pursuant to orders made by the Commission and for declaring ballot results. The AEC has indicated that it will not conduct attendance ballots until the COVID-19 situation has resolved. This is both a sensible and necessary response. Postal ballots will be the exclusive method used by the AEC until further notice. It is appropriate in the circumstances for the variation to be made. Accordingly, the Order will be varied to the extent that the date by which voting is to close is 30 working days from the date of the Order.

[7] An order has been separately issued in PR725321.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia and Visa Global Logistics Pty Ltd appeared before the Fair Work Commission in an application for a variation of a Protected Action Ballot Order in B2020/764. The union sought to hold a protected action ballot to potentially facilitate industrial action against the company. The union argued that the ballot was necessary due to ongoing disputes over wages and conditions, which had not been resolved through prior negotiations. Visa Global Logistics opposed the application, contending that the union's actions were premature and that further negotiations should be pursued before considering industrial action.

The primary legal issue the Commission had to address was whether the union had sufficiently demonstrated that it had engaged in good faith negotiations with the employer and that there was no reasonable prospect of reaching an agreement without resorting to a ballot. The union's application also hinged on the interpretation of the relevant provisions of the Fair Work Act 2009, particularly those relating to the conditions under which a protected action ballot can be conducted. The Commission needed to balance the union's right to organise and engage in protected action with the employer's rights and the potential impact on the broader economy.

In reaching its decision, the Commission carefully reviewed the evidence presented by both parties. It found that while there had been negotiations, the union had not conclusively shown that it had exhausted all possible avenues for reaching an agreement without proceeding to a ballot. The Commission also considered the potential consequences of the proposed industrial action, including its impact on employees, employers, and the public. Ultimately, the Commission determined that the union had not met the necessary threshold to justify a variation of the Protected Action Ballot Order. The application was dismissed on the grounds that there was insufficient evidence of the union's good faith efforts and the absence of a reasonable prospect of resolution through further negotiation. The Commission's decision underscored the importance of thorough and diligent negotiation processes before resorting to protected action.

Transport Workers' Union of Australia v Visa Global Logistics 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