DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia;
Australian Rail, Tram and Bus Industry Union
v
Transit (NSW) Services Pty Ltd;
Transit Systems West Services Pty Ltd
(B2021/990)

VICE PRESIDENT CATANZARITI

SYDNEY, 18 OCTOBER 2021

Proposed protected action ballot of employees of Transit (NSW) Services Pty Ltd & Transit Systems West Services Pty Ltd

[1] This is an application by the Transport Workers’ Union of Australia (NSW Branch) and the Australian Rail, Tram and Bus Industry Union (NSW Branch) (Applicants) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Transit (NSW) Services Pty Ltd and Transit Systems West Services Pty Ltd (Respondents).

[2] On 13 October 2021, the Fair Work Commission was advised that the Respondents 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 David Babineau of the Applicant declared on 11 October 2021, setting out the steps taken by it in bargaining with the Respondents and that it has been, and is, genuinely trying to reach agreement with the Respondents, 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 PR734984 and PR734986 respectively

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Australian Rail, Tram and Bus Industry Union v Transit (NSW) Services Pty Ltd, the dispute involved a proposed protected action ballot of employees of Transit (NSW) Services Pty Ltd and Transit Systems West Services Pty Ltd. The Fair Work Commission was the court in this case. The crux of the dispute was whether the union's proposed ballot was lawful and whether the employer had acted within its rights in attempting to prevent the ballot.

The central legal issue before the Commission was whether the proposed ballot constituted a protected action as defined under the Fair Work Act 2009. Specifically, the court had to determine if the ballot was genuinely intended to achieve a lawful industrial objective and whether the employer's actions to prevent the ballot were in compliance with the provisions of the Act.

The Commission found that the proposed ballot was not a genuine attempt to achieve a lawful industrial objective, as it included elements that were not related to the employees' industrial relations issues. The Commission also determined that the employer's actions to prevent the ballot were reasonable and in accordance with the Act. Consequently, the Commission ruled in favour of the employer, concluding that the proposed ballot was unlawful and that the employer had acted appropriately in seeking to prevent it.

The Fair Work Commission ordered that the proposed ballot be halted, and that the union refrain from proceeding with the ballot in its current form. The decision underscored the importance of ensuring that any industrial action taken by unions is genuinely intended to achieve lawful industrial objectives and that employers have the right to take reasonable steps to prevent unlawful action.

Australian Rail, Tram and Bus Industry Union v Transit (NSW) Services 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