Transport Workers' Union of Australia v ZircoDATA Services Pty Ltd T/A ZircoDATA

[2022] FWC 471

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

ZircoDATA Services Pty Ltd T/A ZircoDATA

(B2022/99)

DEPUTY PRESIDENT BEAUMONT

PERTH, 2 MARCH 2022

Proposed protected action ballot of employees of ZircoDATA Services Pty Ltd

This is an application by the Transport Workers’ Union of Australia (the Applicant) made under s 437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Zirco Data Services Pty Ltd T/A ZircoDATA (the Respondent).

On the 2 March 2022, my Associate was 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.

I have considered all the material before me, including the declaration of Mr Walters of the Applicant, setting out the steps taken by it in bargaining with the Respondent and confirming 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, there is a valid application made pursuant to s 437, and that all of the requirements in s 443(1) of the Act have been met. Accordingly, I am obliged to issue an order in this matter.

An Order[1] therefore issues concurrently with this decision.

DEPUTY PRESIDENT

Determined on the Papers

[1] PR738945.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia (Applicant) applied to the Fair Work Commission (FWC) for a protected action ballot order in relation to certain employees of ZircoDATA Services Pty Ltd T/A ZircoDATA (Respondent) under section 437 of the Fair Work Act 2009 (Act). The application was made to facilitate a proposed protected action ballot of the employees. The Respondent did not object to the application, and as such, the Deputy President of the FWC, Beaumont, determined the matter on the papers without holding a hearing.

The legal issues the court needed to decide included whether there was a notification time in relation to the proposed agreement, whether there was a valid application made pursuant to section 437 of the Act, and whether all of the requirements in section 443(1) of the Act had been met. The court considered all the material before it, including the declaration of Mr. Walters of the Applicant, which outlined the steps taken by the Applicant in bargaining with the Respondent and confirmed that it had been and was genuinely trying to reach an agreement with the Respondent.

The court was satisfied that there was a notification time in relation to the proposed agreement, that there was a valid application made pursuant to section 437, and that all the requirements in section 443(1) of the Act had been met. Consequently, the court was obliged to issue an order in this matter. The court's reasoning was based on the fact that the Applicant had met all the necessary requirements to apply for a protected action ballot order under the Act, and the Respondent had not objected to the application.

In conclusion, the court issued an order in favour of the Applicant, allowing the proposed protected action ballot to proceed. The Deputy President of the FWC, Beaumont, determined the matter on the papers without holding a hearing due to the Respondent's lack of objection. The court's decision was based on the Applicant's compliance with the requirements of the Act and the absence of any objections from the Respondent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established