Spiro Nikolov v Surfside Buslines Pty Ltd

[2023] FWC 531

[2023] FWC 531

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Spiro Nikolov
v

Surfside Buslines Pty Ltd

(B2023/174)

COMMISSIONER HUNT BRISBANE, 3 MARCH 2023

Proposed protected action ballot of employees of Surfside Buslines Pty Ltd

1. Mr Spiro Nikolov 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 Nikolov, an independent employee bargaining representative.

1. The Respondent notified two objections to the application and had sought for the matter to be heard conjointly with the matter of B2023/173, an application made by Mr Norman Murray, due to the similar nature of the two matters. I listed the matter for hearing on 1 March 2023, however Mr Nikolov requested an adjournment as his shifts prevented him from filing the required material in the timeframe I had directed, or attend the hearing. The Respondent supported this and sought for the matter to be adjourned to the following week so that the parties could enter settlement discussions regarding the Respondent’s objections. I proposed to the parties the joining of the two matters, indicating that I would list both matters to be heard on 7 March 2023.

1. On 3 March 2023, the parties wrote to my chambers advising that they had reached a consent position in relation to the written notice referred to in s.414(2)(a) of the Act. Further, the Respondent withdrew its objection in relation to the limitation/exclusion of school services employees. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the declaration of Mr Nikolov, setting out the steps taken by Mr Nikolov in bargaining with the Respondent and confirming that Mr Nikolov 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 s.443(1) of the Act have been met.

1. I am satisfied that Mr Nikolov has given notice in accordance with s.440 of the Act.

1. 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.

1. Section 443(5) of the Act gives the Commission the discretion, where it is satisfied 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.

1. 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 services can be notified of any planned protected industrial action.

1. The protected action ballot order will specify a required period of notice of at least five working days for questions 2, 3, 4, 5 and 6. The protected action ballot order will specify a required period of notice of at least three working days for question 1.

1. The Order [PR760014] will be issued concurrently with this Decision.

COMMISSIONER

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