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

[2023] FWC 774

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v

Zip Airport Services Pty Ltd

(B2023/277)

DEPUTY PRESIDENT CROSS

SYDNEY, 31 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 NSW/QLD (Interim Governance Branch) (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Zip Airport Services Pty Ltd (Respondent).

On 30 March 2023, my Chambers were advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the declaration of Mr Craig Curran of the Applicant setting out the steps taken by it in bargaining with the Respondent I am satisfied that, the Applicant has been and is trying to reach an agreement with the Respondent; and 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.

The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

Therefore, I appoint CiVS as the protected action ballot agent.

An order has been separately issued in PR760754.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has been asked to decide on an application for a protected action ballot order by the Transport Workers' Union of Australia NSW/QLD (Interim Governance Branch) in relation to employees of Zip Airport Services Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, and the employer, Zip Airport Services Pty Ltd, did not object to the application. The Deputy President Cross decided to determine the matter based on the papers without a hearing. The primary legal issues before the Deputy President were whether the union had made reasonable attempts to reach an agreement with the employer, whether the notification time for the proposed agreement had been met, and whether the proposed ballot agent was fit and proper to conduct the ballot. The Deputy President was satisfied that the union had made reasonable attempts to reach an agreement with the employer, that the notification time for the proposed agreement had been met, and that the proposed ballot agent, CiVS, was a fit and proper person to conduct the ballot.

The Fair Work Commission found that the union had made reasonable attempts to reach an agreement with the employer, as evidenced by the declaration of Mr Craig Curran of the union. The Deputy President was also satisfied that the notification time for the proposed agreement had been met, as required by section 443(1) of the Act. The Deputy President further found that CiVS was a fit and proper person to conduct the ballot, as Mr Michael, the Managing Director of CiVS, had provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he had relevant experience in conducting protected action ballots. The Deputy President was satisfied that CiVS was capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. Therefore, the Deputy President appointed CiVS as the protected action ballot agent.

In conclusion, the Fair Work Commission granted the union's application for a protected action ballot order and appointed CiVS as the ballot agent. The employer did not object to the application, and the union had made reasonable attempts to reach an agreement with the employer, met the notification time for the proposed agreement, and proposed a fit and proper ballot agent. The Deputy President was satisfied that CiVS was capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. An order has been separately issued in PR760754.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established