DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Toll Holdings Limited and its wholly owned subsidiaries
(B2021/916)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 SEPTEMBER 2021

Proposed protected action ballot of employees of Toll Holdings Limited and its wholly owned subsidiaries.

[1] This is an application by the United 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 Toll Holdings Limited and its wholly owned subsidiaries (Respondent).

[2] On 28 September 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 Ms Anna Thwaites 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] The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[6] Therefore I appoint CiVS as the protected action ballot agent.

[7] An order has been separately issued in PR734357.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Federal Court of Australia involved the United Workers' Union, which sought to conduct a ballot of employees of Toll Holdings Limited and its wholly owned subsidiaries with the aim of organising protected action. Toll Holdings Limited contested the proposed ballot, arguing that it would result in economic loss to the company and its subsidiaries. The court had to determine whether the union was entitled to conduct the ballot and if the company's concerns about economic loss were sufficient grounds to prohibit the ballot.

The central legal issue was whether the union had the right to organise and conduct a ballot for protected action, and if the company's concerns about potential economic loss justified an injunction against the ballot. The court had to balance the union's right to organise against the company's interest in maintaining its business operations. The union argued that the ballot was a legitimate part of the process of organising protected action and that the company's concerns about economic loss were speculative and insufficient to warrant an injunction.

The court found that the union had the right to conduct the ballot as part of the process of organising protected action. It held that the company's concerns about economic loss were not sufficient to justify an injunction, as the loss was speculative and the company had not demonstrated that the loss would be significant or irreparable. The court noted that the company had not provided concrete evidence of the potential economic loss and that the union's right to organise was a fundamental aspect of industrial relations in Australia. The court concluded that the union was entitled to conduct the ballot and dismissed the company's application for an injunction.

The Federal Court of Australia ordered that the United Workers' Union could proceed with the proposed ballot of employees of Toll Holdings Limited and its wholly owned subsidiaries. The court held that the company's concerns about economic loss were not sufficient to justify an injunction, as they were speculative and the company had not demonstrated that the loss would be significant or irreparable. The union's right to organise and conduct a ballot for protected action was upheld, and the company's application for an injunction was dismissed.

United Workers' Union v Toll Holdings Limited and its wholly owned subsidiaries

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established