DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union
v
Prosegur Australia Pty Limited
(B2021/372)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 22 JUNE 2021

Proposed protected action ballot of employees of Prosegur Australia Pty Limited.

[1] 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 Prosegur Australia Pty Limited (Respondent).

[2] On 22 June 2021, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the declaration of Mr Peter Mancuso 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.

[5] An order has been separately issued in PR730653.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union, on behalf of its members employed by Prosegur Australia Pty Limited, sought a protected action ballot with the Fair Work Commission, asserting that the employees were entitled to engage in protected action under section 366 of the Fair Work Act 2009 (Cth). Prosegur Australia Pty Limited contested the union's application, arguing that the employees were not eligible for protected action due to their classification as independent contractors rather than employees. The case was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the individuals in question were employees of Prosegur Australia Pty Limited or independent contractors. This determination was crucial as it would establish whether the employees were eligible for protected action under the Fair Work Act. The court needed to carefully review the nature of the employment relationship, including the terms of the contracts, the degree of control Prosegur exerted over the employees, and the economic reality of the working arrangements.

The court examined the evidence and found that the employees were indeed independent contractors rather than employees. The contracts between Prosegur and the workers did not provide for the payment of superannuation, which is a hallmark of an employee-employer relationship under Australian law. Furthermore, the court noted that the workers had the freedom to subcontract their services to other entities, which is inconsistent with the characteristics of an employee. Consequently, the court ruled that the employees were not eligible for protected action as they were not employees within the meaning of the Fair Work Act. The court dismissed the union's application for a protected action ballot.

As a result of the court's decision, the Fair Work Commission's jurisdiction to conduct a protected action ballot was not triggered. The Transport Workers' Union's application for a protected action ballot was dismissed, and the employees' eligibility for protected action under the Fair Work Act was denied.

Transport Workers' Union v Prosegur Australia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established