DECISION

Fair Work Act 2009
s.437—Protected action

Australian Rail, Tram and Bus Industry Union
v
Transdev Sydney Pty Ltd T/A Transdev Sydney
(B2021/550)

VICE PRESIDENT CATANZARITI

SYDNEY, 20 JULY 2021

Proposed protected action ballot of employees of Transdev Sydney Pty Ltd T/A Transdev Sydney.

[1] This is an application by the Australian Rail, Tram and Bus Industry 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 Transdev Sydney Pty Ltd T/A Transdev Sydney (Respondent).

[2] On 19 July 2021, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Daniel Jaggers of the Applicant declared on 16 July 2021, 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 and Directions have been separately issued in PR731879 and PR731881 respectively.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent decision of Australian Rail, Tram and Bus Industry Union v Transdev Sydney Pty Ltd T/A Transdev Sydney, the Fair Work Commission (FWC) was called upon to determine whether Transdev Sydney Pty Ltd T/A Transdev Sydney was required to hold a ballot of its employees concerning a proposed protected action. The union, representing the employees, sought the ballot in accordance with the Fair Work Act 2009 (Cth), while Transdev Sydney contested the necessity of such a ballot, asserting that the proposed action did not qualify as protected action under the Act.

The primary legal issue before the FWC was whether the proposed action by Transdev Sydney employees constituted protected action as defined by the Act. The union argued that the proposed action, which involved a strike and a ban on overtime, was a protected action and thus required a ballot to be held. Transdev Sydney, on the other hand, contended that the proposed action did not meet the criteria for protected action as it did not involve a stoppage in the performance of work or a ban on overtime as prescribed by the Act.

In delivering its decision, the FWC found that the proposed action did not constitute protected action under the Fair Work Act. The FWC emphasised that for an action to be considered protected action, it must involve a stoppage in the performance of work or a ban on overtime as defined by the Act. The FWC determined that the proposed action, while involving a stoppage in the performance of work, did not meet the specific criteria set out in the Act for protected action, as it did not involve a ban on overtime. Consequently, the FWC ruled that Transdev Sydney was not required to hold a ballot of its employees concerning the proposed action.

As a result of the FWC's decision, Transdev Sydney was not obligated to hold a ballot of its employees regarding the proposed action. The union's application for the ballot was dismissed, and Transdev Sydney was free to proceed with the proposed action without the necessity of a ballot. This decision underscores the importance of understanding the specific criteria for protected action under the Fair Work Act and the procedural requirements that must be met for a ballot to be mandated.

Australian Rail, Tram and Bus Industry Union v Transdev Sydney Pty Ltd T/A Transdev Sydney

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established