DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Toll Transport Pty Ltd
(B2021/909)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 27 SEPTEMBER 2021

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

[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 Ltd (Respondent).

[2] On 27 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 PR734304.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union sought to conduct a protected action ballot of employees of Toll Transport Pty Ltd, which Toll opposed. The dispute was heard in the Federal Court of Australia. The central issue before the Court was whether the Union's proposed ballot complied with the necessary legal requirements under the Fair Work Act 2009 (Cth). Specifically, the Court needed to determine whether the ballot notice provided by the Union sufficiently outlined the proposed action, including the duration and scope of the action, and whether it was appropriate to grant the injunction Toll sought to prevent the ballot from proceeding.

The Court held that the Union's ballot notice did not comply with the statutory requirements under the Fair Work Act. The notice failed to adequately specify the details of the proposed industrial action, such as the duration and scope. The Court found that the ballot notice was insufficiently precise and did not provide Toll with the necessary information to respond appropriately. As a result, the Union's proposed ballot did not meet the legal standards, and the Court granted the injunction sought by Toll to prevent the ballot from proceeding. This decision underscores the importance of ensuring that all procedural requirements are strictly adhered to when organising industrial action.

United Workers' Union v Toll Transport Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established