United Workers' Union v Schenker Australia Pty Ltd

[2022] FWC 2190

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Schenker Australia Pty Ltd

(B2022/1234)

VICE PRESIDENT CATANZARITI

SYDNEY, 18 AUGUST 2022

Proposed protected action ballot of employees of Schenker Australia Pty Ltd

This is an application by the United Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Schenker Australia Pty Ltd (Respondent).

On 17 August 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Anna Thwaites of the Applicant declared on 15 August 2022, 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 PR744904.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the United Workers’ Union, which applied for a protected action ballot order in relation to certain employees of Schenker Australia Pty Ltd under section 437 of the Fair Work Act 2009. The Union argued that it had been genuinely attempting to negotiate with the Respondent and that a notification time in relation to the proposed agreement had been established. The Respondent did not oppose the application, leading the Commission to decide the matter on the basis of the submitted documents without the need for a hearing.

The primary legal issue before the Commission was whether the Union had met the necessary criteria for a protected action ballot, specifically whether it had genuinely attempted to reach an agreement with the employer and whether the notification time for the proposed agreement had been adequately established. Additionally, the Commission had to consider whether the statutory requirements under section 443(1) of the Act were satisfied. These questions were central to determining whether the Union's application should be granted.

The Vice President, Catanzariti, concluded that the Union had indeed met the necessary criteria. The statutory declaration provided by Anna Thwaites of the Union outlined the steps taken during the bargaining process and confirmed that the Union had been genuinely trying to reach an agreement with Schenker Australia Pty Ltd. Furthermore, the Commission was satisfied that the notification time for the proposed agreement had been properly established and that all statutory requirements under section 443(1) of the Act had been met. Consequently, the application for a protected action ballot order was approved.

In light of the findings, the Fair Work Commission issued an Order approving the Union's application for a protected action ballot in PR744904. This decision allows the Union to proceed with the ballot, subject to the provisions of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established