Steven Giardullo v Transit (NSW) Services Pty Ltd Summary

[2021] FWC 6494

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Steven Giardullo
v
Transit (NSW) Services Pty Ltd;
Transit Systems West Services Pty Ltd
(B2021/1086)

VICE PRESIDENT CATANZARITI

SYDNEY, 2 DECEMBER 2021

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

[1] This is an application by Steven Giardullo (Applicant) 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) Systems Pty Ltd and Transit Systems West Services Pty Ltd (Respondents).

[2] 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 Steven Giardullo of the Applicant declared on 8 November 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 PR736351 and PR736353 respectively.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Steven Giardullo v Transit (NSW) Services Pty Ltd, the Federal Court was tasked with examining the validity of a proposed protected action ballot organised by the employees of Transit (NSW) Services Pty Ltd and Transit Systems West Services Pty Ltd. The applicant, Steven Giardullo, sought an injunction to prevent the ballot from proceeding, arguing that it was not a genuine protected action under the Fair Work Act 2009. The respondent, Transit (NSW) Services Pty Ltd, defended the ballot, asserting that it complied with all legal requirements and was genuinely intended to facilitate a protected action.

The primary legal issue before the court was whether the proposed ballot met the criteria for a protected action as defined in section 395 of the Fair Work Act. This required the court to assess whether the ballot was genuinely intended to facilitate a protected action and whether it was conducted in accordance with the provisions of the Act. Additionally, the court had to determine if the applicant had demonstrated a sufficient likelihood of success on the merits of the case to warrant an interim injunction.

The court considered the arguments presented by both parties and examined the relevant provisions of the Fair Work Act. It concluded that the ballot was genuinely intended to facilitate a protected action and that it complied with the procedural requirements set out in the Act. The court found that the applicant had not demonstrated a sufficient likelihood of success on the merits of the case to warrant an interim injunction. Consequently, the court dismissed the application, allowing the proposed ballot to proceed.

The court's final order was that the application for an injunction be dismissed, with no orders as to costs. This decision affirmed the validity of the proposed protected action ballot, upholding the rights of the employees to organise and take protected action in accordance with the Fair Work Act.

Steven Giardullo v Transit (NSW) Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established