Independent Transport Union Inc v CDC Geelong Pty Ltd Summary

[2025] FWC 2067

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Independent Transport Union Inc
v

CDC Geelong Pty Ltd; CDC Oakleigh Pty Ltd; CDC Sunshine Pty Ltd; CDC Tullamarine Pty Ltd; CDC Wyndham Pty Ltd; CDC Victoria East Pty Ltd; CDC Victoria West Pty Ltd; CDC Victoria North-West Pty Ltd; CDC Mildura Pty Ltd; CDC Ballarat Pty Ltd

(B2025/1150)

DEPUTY PRESIDENT HAMPTON

MELBOURNE, 18 JULY 2025

Proposed protected action ballot of employees of 10 related bus transport employers in Victoria.

This is an application by the Independent Transport Union Inc (ITU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the following employers:

·CDC Geelong Pty Ltd
·CDC Oakleigh Pty Ltd
·CDC Sunshine Pty Ltd
·CDC Tullamarine Pty Ltd
·CDC Wyndham Pty Ltd
·CDC Victoria East Pty Ltd
·CDC Victoria West Pty Ltd and
·CDC Victoria North-West Pty Ltd
·CDC Mildura Pty Ltd
·CDC Ballarat Pty Ltd.

The employers (collectively CDC or Employers) are related entities who operate bus and transport services in Victoria and are bargaining for a single enterprise agreement.

I note that the Transport Workers’ Union of Australia (TWU)[1] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement and the Protected Action Ballot Order was granted in that matter.
On 17 July 2025, the Commission was advised that the Employer did not object to the Application following discussion between the parties. The parties communicated a consent position. This included agreement, in effect, that there were exceptional circumstances warranting an extended period of notice of industrial action. Accordingly, I have decided to grant leave to amend the application and to determine the matter on the papers without the need for a hearing.

On the basis of the material before me, including the declaration of Marc Marotta, Industrial Consultant, setting out the steps taken by the ITU in bargaining with the Employers and that it has been, and is, genuinely trying to reach agreement with CDC, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the AEC.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 29 August 2025.[2]

I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying the period of written notice referred to in section 414(2)(b) of the Act being longer than three (3) working days. By consent, the Commission has specified seven (7) working days as the minimum period of written notice required in respect of the industrial action taken by employees arising from items one to four inclusive in the ballot questions in clause 5 of the Order.

An Order has been separately issued in PR789722.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] B2025/1050 - PR788681

[2] This is, in effect, 30 working days from the making of the Order and is the period required by the AEC.

Printed by authority of the Commonwealth Government Printer

< PR789723>

CaseChat Overview and Summary

The Independent Transport Union Inc. (ITU) lodged an application under section 437 of the Fair Work Act 2009 for a protected action ballot order on behalf of employees of multiple bus transport employers in Victoria, collectively referred to as CDC. The CDC entities involved operate bus and transport services and are currently engaged in bargaining for a single enterprise agreement. This application follows a similar application by the Transport Workers' Union of Australia, which was granted a ballot order. The CDC entities did not object to the ITU's application, and after discussions between the parties, the Fair Work Commission was advised that the employers consented to the application being determined on the papers without a hearing. The Commission determined that the ITU had met all requirements for a protected action ballot, including demonstrating that it had genuinely tried to reach an agreement with the CDC entities.

The primary legal issue for the Fair Work Commission to decide was whether the ITU had met the statutory criteria for a protected action ballot order, specifically under section 437 of the Fair Work Act. The Commission had to ascertain if there were exceptional circumstances that warranted extending the notice period for the industrial action beyond the standard three working days. Given the consent of the CDC entities and the ITU's declaration that it had been genuinely attempting to reach an agreement, the Commission was satisfied that the conditions for the ballot were fulfilled. The application was supported by a declaration from an industrial consultant confirming the ITU's efforts in bargaining.

The Fair Work Commission granted the ITU's application for a protected action ballot order. The Commission determined that the Australian Electoral Commission would conduct the ballot. The Commission set the voting closing date as 29 August 2025, considering it to be 30 working days from the making of the order. The Commission also acknowledged exceptional circumstances that justified extending the notice period for the industrial action to seven working days, as agreed by the parties. Consequently, the Commission issued an order for the ballot and assigned the matter to another Commission member to conduct a compulsory conciliation conference to facilitate negotiations between the parties.

The final orders included granting the ballot order, setting the voting closing date, extending the notice period to seven working days, and assigning the matter for a compulsory conciliation conference. The Commission also issued an order for the conciliation conference, requiring all bargaining representatives to attend and directing them to be prepared for meaningful negotiations.

Independent Transport Union Inc v CDC Geelong Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established