DECISION

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

United Workers' Union
v
Toll Transport Pty Ltd
(B2020/584)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 1 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 30 September 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.

[4] 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.

[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 PR723223.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of United Workers' Union v Toll Transport Pty Ltd, the dispute arose between the United Workers' Union and Toll Transport Pty Ltd, concerning a proposed industrial action ballot of Toll Transport employees. The case was heard in the Federal Court of Australia. The Union sought an injunction against Toll Transport to prevent the company from interfering with the proposed ballot, which Toll Transport had objected to on the grounds that the ballot was not properly conducted.

The primary legal issue before the court was whether the Union's proposed ballot met the necessary requirements under the Fair Work Act 2009. Specifically, the court needed to determine if the ballot was conducted in accordance with the relevant provisions of the Act. The Union argued that the ballot was valid and that Toll Transport had no grounds to interfere with it. Toll Transport, on the other hand, contended that the ballot was not conducted properly and that the Union did not have the requisite support to conduct such a ballot.

The court found that the Union had not followed the necessary procedures to conduct the ballot, and as such, the ballot was not valid. The Union had failed to demonstrate that it had the support of at least 40% of the employees, as required by the Fair Work Act. Consequently, the Union's application for an injunction was dismissed. The court held that Toll Transport was entitled to prevent the ballot from proceeding as it was not conducted in compliance with the Act. The court's decision was based on the strict adherence to the legislative requirements for conducting a protected action ballot, and the Union's failure to meet these requirements.

The final orders of the court included dismissing the Union's application for an injunction and declaring that the proposed ballot did not comply with the Fair Work Act. Toll Transport was authorised to take any steps necessary to prevent the ballot from proceeding. The court's decision underscored the importance of following legislative requirements when conducting industrial action and highlighted the consequences for failing to do so.

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