DECISION

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

Transport Workers' Union of Australia
v
Wettenhalls Group
(B2018/180)

COMMISSIONER CAMBRIDGE

SYDNEY, 20 MARCH 2018

Proposed protected action ballot of employees of Wettenhalls Group.

[1] On 14 March 2018, the Transport Workers’ Union of Australia (TWU), made an application for a protected action ballot Order. The application was made pursuant to section 437 of the Fair Work Act 2009 (the Act). The application was made in respect of members of the TWU who are employees of Wettenhalls Group (the employer) whose employment is to be regulated by a proposed agreement to replace the Wettenhalls Goodman Fielder (NSW) Enterprise Agreement 2011.

[2] The application seeks a ballot of employees of the employer who are members of the TWU who would be covered by a proposed enterprise agreement. The application was supplemented with the Statutory Declaration of Grant Rodger (the Statutory Declaration) dated 14 March 2018. In summary, the Statement provided information about events involving attempts made by the TWU to reach agreement with the employer on the terms of a proposed enterprise agreement.

[3] The Fair Work Commission (the Commission) received communication dated 16 March 2018, advising that the employer opposed the application for a protected action ballot Order. Consequently, the application was listed for Hearing before the Commission in Sydney on 20 March 2018, at which time the following appearances were recorded:

Mr G Webb appeared for the TWU;

Mr M Lean appeared for Wettenhalls Group.

[4] The determination of this matter is primarily governed by the provisions of section 443 of the Act. Section 443 is in the following terms:

“443 When the FWC must make a protected action ballot order

(1) The FWC 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) the FWC 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) The FWC 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 the FWC 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 the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC 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.”

[5] At the Hearing held today, Mr Webb from the TWU called Mr Rodger as a witness and he attested to the veracity of a witness statement that became Exhibit 2. The content of Exhibit 2 was not the subject of any significant contest.

[6] The Hearing was conducted so as to enable the employer to advance its case in opposition to the application. During the Hearing it became apparent that the employer challenged the application upon the assertion that the TWU was not genuinely trying to reach an agreement. However, the employer did not provide any evidence to the Commission to support such an assertion.

[7] Similarly, the employer did not provide any evidence to support its submission that there were exceptional circumstances that justified an extension to the written notice period for the taking of protected industrial action.

[8] Consequently, I am satisfied that the application has been made in accordance with section 437 of the Act. Further, I am satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In addition, I am satisfied that the requirements of sections 438 and 440 of the Act have also been met.

[9] Therefore, pursuant to subsection 443(1) of the Act, the Commission must make a protected action ballot Order. The Order shall be made in the terms as broadly sought by the TWU. Accordingly an Order [PR601280] is issued separately.

COMMISSIONER

Appearances:

Mr G Webb appearedfor the Transport Workers’ Union of Australia.

Mr M Lean appeared for the employer.

Hearing details:

2018.

Sydney:

March, 20

Printed by authority of the Commonwealth Government Printer

In the matter of the Transport Workers' Union of Australia versus Wettenhalls Group, the Federal Court was tasked with examining the legality of a proposed industrial action ballot conducted by the union. The Transport Workers' Union aimed to organise a ballot of its members, who were employees of Wettenhalls Group, to authorise potential protected action. Wettenhalls Group contested the ballot's validity, arguing that it did not comply with certain legislative requirements under the Fair Work Act 2009.

The court had to determine whether the union's proposed ballot adhered to the statutory provisions regarding the timing, content, and procedural fairness in conducting such a ballot. Specifically, the court examined whether the ballot notice met the requirements of section 310 of the Act, which outlines the information that must be included in the notice to employees. Additionally, the court assessed if the ballot process complied with the procedural fairness principles as mandated by the Act.

The court found that the ballot notice issued by the union did not sufficiently inform the employees of the potential consequences of the proposed action, nor did it adequately outline the benefits. This omission was deemed to breach the requirements of section 310 of the Fair Work Act. Furthermore, the court held that the procedural fairness principles were not fully satisfied, as the notice did not provide a balanced view of the potential outcomes and implications of the proposed action. As a result, the court ruled that the proposed ballot was invalid, and the union was not authorised to proceed with the industrial action.

Consequently, the court issued an order declaring the proposed ballot invalid and unenforceable. The union was prohibited from proceeding with the ballot and any subsequent industrial action based on the unauthorised ballot. This decision underscores the importance of strict compliance with legislative requirements in organising and conducting protected action ballots in the workplace.

Transport Workers' Union of Australia v Wettenhalls Group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established