United Workers' Union v Toll Transport Pty Ltd

[2023] FWC 266

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Toll Transport Pty Ltd

(B2023/59)

VICE PRESIDENT CATANZARITI

SYDNEY, 31 JANUARY 2023

Proposed protected action ballot of employees of Toll Transport 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 Toll Transport Pty Ltd (Respondent).

On 30 January 2023, 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 27 January 2023, 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 PR750095.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 to hold a protected action ballot for certain employees of Toll Transport Pty Ltd. The application was made to facilitate industrial action by the employees, presumably due to disputes over workplace conditions or other employment-related matters. Toll Transport Pty Ltd did not oppose the application. The Vice President of the Commission, Catanzariti, decided to determine the matter on the basis of the documents submitted without a hearing.

The primary legal issue for the court was whether the Union had genuinely tried to reach an agreement with Toll Transport Pty Ltd and whether the statutory notification period had been met. The court needed to determine if the Union had satisfied the requirements of section 443(1) of the Fair Work Act to hold the ballot. The evidence presented included a statutory declaration from Anna Thwaites of the Union, outlining the bargaining process and the Union's efforts to reach an agreement with the Respondent.

The Vice President found that the Union had genuinely attempted to reach an agreement with Toll Transport Pty Ltd and that the notification period requirements had been met. The Union had provided evidence of its bargaining efforts and the statutory declaration supported its claim. As a result, the Vice President was satisfied that the conditions for a protected action ballot were met, and no further hearing was necessary.

The Vice Work Commission issued an order permitting the Union to proceed with the ballot as requested. This decision underscores the importance of proper notification and genuine bargaining efforts in the context of protected industrial action under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established