United Workers' Union v Lineage Aus TRS Pty Limited T/A Lineage Logistics

[2024] FWC 657

[2024] FWC 657

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Lineage Aus TRS PTY Limited T/A Lineage Logistics

(B2024/215)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 14 MARCH 2024

Proposed protected action ballot of employees of Lineage Aus TRS PTY Limited

1. This is an application by the United Workers’ Union (UWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Lineage Aus TRS PTY Limited T/A Lineage Logistics (Lineage or Employer).[1]

1. On 14 March 2024, the Commission was advised that Lineage had concerns with the application. The substantive basis of the concern related to the potential safety consequences arising from one of the proposed ballot questions. 

1. In the circumstances, I have conducted a hearing to deal with the application. Having done so, I have determined that the application should be granted. My reasons for doing so are set out herein.

1. The Employer’s primary concern was that proposed question five (5) would pose a safety consequence for its chain of responsibility, driver fatigue management and food safety obligations.

1. Proposed question five (5) reads:

An unlimited number of bans on all data collection and/or data entry and/or paperwork of indefinite duration?

Yes [ ] No [ ]

1. In light of a concession that there was no general discretion afforded to the Commission to refuse a ballot question within an Order of this kind on safety grounds, the Employer did not press their primary concern. I note that issues regarding safety may have an impact on form of industrial action the Applicant can, and should, take. The Applicant was put on notice in this regard during the hearing.

1. I also raised the absence of a preamble to the ballot questions in the proposed order with the parties. The parties raised no objection to the inclusion of the Commission’s standard preamble within Clause 5 of the Order. 

1. On the basis of the material before me, including the declaration of Ms Jenna Christie, Organiser, setting out the steps taken by the UWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Lineage, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.  

1. The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[2] and consequently is authorised to conduct the ballot.

1. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 28 March 2024. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. An Order has been separately issued in PR772302.

1. This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] The identity of the Employer was amended by consent to reflect the proper name of the employing entity.

[2] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

Printed by authority of the Commonwealth Government Printer

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