Transport Workers’ Union v

[2022] FWC 211

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union
v

McColl’s Operations Pty Ltd T/A McColl’s Operations
(B2022/36)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 1 FEBRUARY 2022

Proposed protected action ballot of employees of McColl’s Operations Pty Ltd T/A McColl’s Operations.

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

On 31 January 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.

On the basis of the material before me, including the declaration of Mr Daryl Coghill 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 PR737946.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application made by the Transport Workers’ Union (Applicant) under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of McColl’s Operations Pty Ltd T/A McColl’s Operations (Respondent). The application seeks to allow the employees to vote on a proposed industrial action. The matter was heard by Deputy President Clancy of the Fair Work Commission in Melbourne on 1 February 2022.

The primary legal issue for the court to decide was whether the conditions for a protected action ballot under the Fair Work Act were met. This required the court to consider whether the notification time for the proposed agreement had been met and whether the union had genuinely tried to reach an agreement with the employer. The court was also required to assess the declaration provided by Mr Daryl Coghill of the Applicant, which outlined the steps taken by the union in bargaining with the employer.

In determining the matter, Deputy President Clancy reviewed the material before him, including the declaration provided by the Applicant. He found that the Respondent did not object to the application and that the requirements in section 443(1) of the Act had been met. As a result, the court was satisfied that the notification time for the proposed agreement had been met and that the union had genuinely tried to reach an agreement with the employer. Consequently, the court granted the application for a protected action ballot order.

The court's decision resulted in an order being separately issued in PR737946. The final order allowed the employees to vote on the proposed industrial action, subject to the terms and conditions set out in the order. The decision underscores the importance of meeting the notification time and the requirement for genuine bargaining in the context of protected action ballots under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established