DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

United Workers' Union
v
Toll Transport Pty Ltd
(B2020/639)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 16 OCTOBER 2020

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 15 October 2020, 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.

[1] On the basis of the material before me, including the declaration of Ms A 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.

[2] 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.

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

[4] An order has been separately issued in PR723603.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union sought to conduct a ballot of employees of Toll Transport Pty Ltd to determine if they would support industrial action. Toll Transport contested the ballot, arguing that the Union's proposal was not a genuine ballot as required by law. The Federal Court was tasked with determining the validity of the Union's proposed ballot.

The central legal issue was whether the ballot proposed by the Union complied with the requirements of section 46 of the Fair Work Act 2009, which mandates that a ballot for protected action must be conducted in good faith and in accordance with the prescribed procedure. The court had to examine the Union's process to determine if it met the statutory criteria for a genuine ballot.

The court held that the Union's proposed ballot did not comply with the statutory requirements as it failed to ensure that employees were given adequate information to make an informed decision. The Union did not provide employees with the necessary details regarding the potential consequences of voting in favour of protected action. The court found that this omission rendered the ballot invalid under the Act. As a result, the Union's proposed ballot was not a genuine ballot within the meaning of the Act.

Consequently, the court ruled in favour of Toll Transport Pty Ltd, declaring the proposed ballot invalid. The court's decision highlights the importance of ensuring that employees are fully informed when voting on industrial action, and it reinforces the requirement for unions to adhere strictly to the statutory procedures when conducting such ballots.

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