Norman Murray v Surfside Buslines Pty Ltd
[2022] FWC 3067
•18 NOVEMBER 2022
| [2022] FWC 3067 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
Norman Murray
v
Surfside Buslines Pty Ltd
(B2022/1711)
| COMMISSIONER HUNT | BRISBANE, 18 NOVEMBER 2022 |
Proposed protected action ballot of employees of Surfside Buslines Pty Ltd
Mr Norman Murray has made an application under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Surfside Buslines Pty Ltd (the Respondent). The application was accompanied by a statutory declaration of Mr Murray, an independent employee bargaining representative.
The Respondent notified two objections to the application and had sought for the matter to be heard conjointly with the matter of B2022/1709, an application made by the Transport Workers’ Union (the TWU), due to the similar nature of the two matters. Upon allocation, I proposed to the parties the joining of the two matters, indicating that I would list them for hearing together on 18 November 2022.
On 17 November 2022, the Respondent wrote to my chambers advising that the Respondent and the TWU have reached a consent position in relation to the written notice period referred to in s.414(2)(a) of the Act and withdrew their objection in relation to the limitation / exclusion of school services employees. The consent position was sent to Mr Murray, seeking his views in respect of his own application.
Mr Murray communicated with my chambers that he is comfortable to have his application determined on the papers and consents to the same number of working days’ notice required to be given as the TWU in respect of the questions on his proposed ballot order. The Respondent wrote to my chambers today, advising that it is in agreement.
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 Murray, setting out the steps taken by Mr Murray in bargaining with the Respondent and confirming that Mr Murray has been, and is, genuinely trying to reach agreement with the Respondent, I am also satisfied there is a notification time in relation to the proposed agreement and the requirements in section 443(1) of the Act have been met.
I am satisfied that Mr Murray has given notice in accordance with section 440 of the Act.
As stipulated, the parties reached a consent position regarding the period of written notice being longer than three working days for some of the questions within the order. The parties considered it appropriate for the Respondent to be provided with five working days’ notice in respect of some questions.
Section 443(5) of the Act gives the Commission the discretion, where it is satisfied that there are exceptional circumstances justifying the period of written notice being longer than three days, to specify a longer period of up to seven working days’ notice.
In my view, specifying a longer period of notice for some of the questions within the Order is justified by the particular exceptional circumstances in this case as detailed in the Employer’s response, particularly ensuring that appropriate contingency arrangements are put in place and to ensure that users of the Respondent’s service can be notified of any planned protected industrial action.
The protected action ballot order will specify a required period of notice of at least five working days for questions 2, 3, 4, 5, 6 and 7. The protected action ballot order will specify a required period of notice of at least three working days for questions 1 and 8.
The Order [PR748060] will be issued concurrently with this Decision.
COMMISSIONER
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