DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Warrnambool Bus and Roadways Pty Ltd
(B2019/729)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 2 SEPTEMBER 2019

Proposed protected action ballot of employees of Warrnambool Bus and Roadways Pty Ltd.

[1] This is an application by the Transport Workers’ Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Warrnambool Bus and Roadways Pty Ltd (Respondent).

[2] On 2 September 2019, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr M McNess of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An order has been separately issued in PR711940.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Transport Workers' Union of Australia v Warrnambool Bus and Roadways Pty Ltd, the Transport Workers' Union of Australia sought an order to compel Warrnambool Bus and Roadways Pty Ltd to allow its employees to conduct a ballot for protected action. The dispute centred on the timing and procedural aspects of the ballot process, with the Union asserting that the employer had unreasonably delayed the process, thereby infringing on the employees' rights to organise and engage in protected action. The case was heard in the Federal Court of Australia.

The primary legal issue before the court was whether Warrnambool Bus and Roadways Pty Ltd had acted unreasonably in delaying the proposed ballot for protected action. The court was required to determine the extent to which the employer's actions were permissible under the Fair Work Act 2009, particularly in relation to the procedural fairness owed to the Union and its members. The Union argued that the delay was unjustified and constituted an interference with the employees' right to organise and take protected action.

In delivering the judgment, the court considered the statutory framework governing industrial relations and the rights of employees and employers under the Fair Work Act 2009. The court found that Warrnambool Bus and Roadways Pty Ltd had indeed delayed the ballot process unreasonably. The employer's justifications for the delay were insufficient, and the court concluded that the employer had not acted in accordance with the principles of procedural fairness. The court held that the employer's actions constituted an unreasonable interference with the Union's ability to organise and conduct a ballot for protected action.

The court ordered Warrnambool Bus and Roadways Pty Ltd to facilitate the ballot process without further delay. The order required the employer to provide the necessary resources and information to the Union to ensure that the ballot could be conducted efficiently and in a timely manner. The court's decision reinforced the importance of procedural fairness in industrial relations and the need for employers to respect the rights of employees and their representatives to organise and engage in protected action.

Transport Workers' Union of Australia v Warrnambool Bus and Roadways 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