John Charles Porter, David Arthur Hobson-Campbell v Torrens Transit Services Pty Ltd T/A Torrens Transit

[2022] FWC 3181

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

John Charles Porter, David Arthur Hobson-Campbell
v

Torrens Transit Services Pty Ltd T/A Torrens Transit

(B2022/1783)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 1 DECEMBER 2022

Proposed protected action ballot of employees of Torrens Transit Services Pty Ltd

This is an application by Mr David Hobson-Campbell, Mr John Porter, Mr Richard Ballantyne, Mr Tony Vartuli and Mr Gurinder Pal Singh (Applicants) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Torrens Transit Services Pty Ltd. (Respondent).

On 1 December 2022, my Associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Mr John Charles Porter, one of the Applicants, 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.

An order has been separately issued in PR748494.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the applicants, John Charles Porter, David Arthur Hobson-Campbell, Richard Ballantyne, Tony Vartuli, and Gurinder Pal Singh, who sought a protected action ballot order in relation to certain employees of Torrens Transit Services Pty Ltd. The applicants sought to conduct a protected action ballot, which is a vote among employees to determine if they support industrial action such as a strike or other form of protest. The dispute arose under section 437 of the Fair Work Act 2009, which provides a framework for protected industrial action.

The legal issues that the Commission had to address included whether the applicants had genuinely attempted to negotiate in good faith with the employer, Torrens Transit Services Pty Ltd, and if the statutory requirements for a protected action ballot were met. The Commission also had to consider whether the proposed industrial action was protected action under the Act and if the notification period for the ballot was correctly calculated.

In determining the application, Deputy President Clancy examined the evidence presented, including the declaration of John Charles Porter, one of the applicants, detailing the steps taken in bargaining with the employer and confirming that the applicants had been genuinely trying to reach an agreement. The Commission was satisfied that the applicants had met the requirements under section 443(1) of the Act, which includes demonstrating that a good faith attempt to negotiate had been made and that a notification time had been given. As the employer did not object to the application, the Deputy President decided to proceed with the matter on the papers without a hearing.

Consequently, the Commission issued an order allowing the protected action ballot to proceed. This order was issued separately in PR748494. The decision highlights the importance of demonstrating genuine bargaining efforts and compliance with statutory notification periods when seeking to conduct protected industrial action under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established