DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Toll Transport Pty Ltd
(B2020/501)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 1 SEPTEMBER 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 1 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] An order has been separately issued in PR722326.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court of Australia was presented with a case involving the United Workers' Union and Toll Transport Pty Ltd. The dispute centred around the union's proposed ballot for protected action by Toll Transport employees, seeking authorisation to take industrial action. The union aimed to gather support from employees for a potential strike or other forms of industrial action, which Toll Transport contested, arguing that the ballot was not appropriately aligned with the requirements of the Fair Work Act 2009.

The primary legal issue before the court was whether the union's proposed ballot met the legislative criteria for a protected action ballot, specifically under section 394 of the Fair Work Act. This section outlines the necessary conditions that must be fulfilled for a union to lawfully conduct a ballot for protected action, including ensuring that the employees concerned are members of the union and that the ballot is for a specific purpose. The court needed to determine if the union had satisfied these conditions and if the ballot was appropriately targeted to the relevant group of employees.

In examining the union's actions, the court focused on the procedural and substantive requirements set out in the Fair Work Act. It assessed whether the ballot notice provided to employees was clear and precise, whether the employees were adequately informed of the purpose of the ballot, and whether the ballot complied with the statutory framework. The court found that the union had not sufficiently demonstrated that the ballot complied with the statutory criteria, particularly in relation to the clarity of the ballot notice and the information provided to employees. Consequently, the court ruled that the union's proposed ballot did not meet the legal standards necessary for protected action.

As a result of the court's decision, the union's proposed ballot for protected action was declared invalid. The court's judgment emphasised the importance of adherence to the legislative requirements for conducting a ballot for protected action. The decision highlighted the necessity for unions to ensure that their ballots are both procedurally and substantively compliant with the Fair Work Act. The court's ruling brought clarity to the legal standards governing protected action ballots, reinforcing the importance of compliance with statutory provisions.

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