Transport Workers' Union of Australia v Zip Airport Services Pty Ltd

[2023] FWC 631

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Zip Airport Services Pty Ltd

(B2023/246)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 17 MARCH 2023

Proposed protected action ballot of employees of Zip Airport Services Pty Ltd

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 (PABO).

In its application, the Applicant sought a PABO in relation to employees of Viva Energy Australia Pty Ltd and specified the employees to be balloted as being employees of Viva Energy Australia Pty Ltd who are members of the Applicant and for who the Applicant is their bargaining agent. It was subsequently confirmed that the employer of these employees and the correct respondent to the application is in fact Zip Airport Services Pty Ltd (Respondent). I have determined that I should amend the application so as to record “Zip Airport Services Pty Ltd” as the respondent to the application, and I consider my doing so comes within the circumstances in which it has been held this is possible pursuant to s.586 of the Act.[1] There was no objection to this course of action.

The Respondent has not objected to the application however it has contended that there are exceptional circumstances justifying a longer notice period.

I am not 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) of the Act being longer than 3 working days. I will publish my reasons for this decision in due course.

On the basis of the material before me, including the declaration of Dean Sloan 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.

An order has been separately issued in PR760330.

DEPUTY PRESIDENT

Appearances:
Mr B Baarini for the Applicant
Ms N Gaspar for the Respondent

Hearing details:
2023
Melbourne
17 March 2023

[1] Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 at [28].

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia (Applicant) lodged an application under section 437 of the Fair Work Act 2009 for a protected action ballot order (PABO) against Zip Airport Services Pty Ltd (Respondent). The union sought a ballot for employees of Viva Energy Australia Pty Ltd, however it was later confirmed that Zip Airport Services Pty Ltd was the correct respondent. The union intended to ballot employees who were members of the union and for whom the union was their bargaining agent. The union sought the ballot after claiming to have been genuinely attempting to reach an agreement with the Respondent.

The primary legal issue before the Deputy President was whether there were exceptional circumstances justifying a longer notice period than the standard three working days for the proposed industrial action. The Respondent argued that there were such circumstances, while the union contended that there were not. The Deputy President considered the material before them, including the union's declaration, which outlined the union's bargaining efforts with the Respondent. The Deputy President concluded that there were no exceptional circumstances justifying a longer notice period. The Deputy President also found that the union had met the notification time in relation to the proposed agreement and had satisfied the requirements in section 443(1) of the Act.

After considering the arguments and material presented, the Deputy President determined that there were no exceptional circumstances justifying a longer notice period for the proposed industrial action. The Deputy President issued a PABO in PR760330, allowing the union to proceed with the ballot. No further orders were made.

This case highlights the importance of correctly identifying the respondent in an application and the criteria the Deputy President considers when deciding on a PABO. The Deputy President's decision demonstrates that the union must demonstrate that it has genuinely attempted to reach an agreement with the employer and that there are no exceptional circumstances justifying a longer notice period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established