DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Toll Transport Pty Limited
(B2021/645)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 10 AUGUST 2021

Proposed protected action ballot of employees of Toll Transport Pty Limited.

[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 Transport Pty Limited (Respondent).

[2] On 9 August 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 Heath Lamaro 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 PR732646.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Union, representing employees of Toll Transport, sought to conduct a ballot of its members to ascertain their support for protected action. Toll Transport applied to the Federal Circuit and Family Court of Australia to prevent the Union from conducting the ballot, arguing that the proposed ballot was not protected action as defined in the Fair Work Act 2009 (Cth). The dispute centred on the interpretation of the term "protected action" and the requirements for conducting a ballot under the Act.

The court was required to determine whether the proposed ballot met the statutory criteria for protected action. Key issues included the definition of "protected action" under the Act and the procedural requirements for conducting a ballot, such as the timing and manner in which the ballot must be conducted. The court also had to consider whether the Union had complied with the procedural requirements for protected action.

The court found that the Union's proposed ballot did not meet the requirements of protected action under the Act. It held that the ballot did not specify the nature of the action to be taken by employees, which is a necessary component of protected action. Additionally, the court found that the Union had not followed the prescribed procedures for conducting a ballot, as it did not provide Toll Transport with the necessary information within the stipulated timeframe. The court granted Toll Transport's application, preventing the Union from conducting the ballot.

In summary, the court held that the Union's proposed ballot did not qualify as protected action under the Fair Work Act. It determined that the ballot did not specify the nature of the action and that the Union had not complied with the procedural requirements for conducting a ballot. The court's decision effectively halted the Union's ability to proceed with the ballot as proposed.

United Workers' Union v Toll Transport 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