The Australian Institute of Marine and Power Engineers v Transdev Sydney Ferries Pty Ltd

[2022] FWC 2335

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Institute of Marine and Power Engineers
v

Transdev Sydney Ferries Pty Ltd

(B2022/1295)

VICE PRESIDENT CATANZARITI

SYDNEY, 2 SEPTEMBER 2022

Proposed protected action ballot of employees of Transdev Sydney Ferries Pty Ltd

This is an application by the Australian Institute of Marine and Power Engineers (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 Transdev Sydney Ferries Pty Ltd (Respondent).

The Respondent did not oppose 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 statutory declaration of Sam Littlewood of the Applicant declared on 29 August 2022, 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 PR745442.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide a matter involving the Australian Institute of Marine and Power Engineers, which sought a protected action ballot order in relation to certain employees of Transdev Sydney Ferries Pty Ltd. The Respondent did not oppose the application, leading the Commission to decide the matter on the papers without holding a hearing. The Applicant argued that it had been genuinely trying to reach agreement with the Respondent and had met the requirements in section 443(1) of the Fair Work Act 2009.

The legal issues before the Commission were whether the Applicant had genuinely been trying to reach agreement with the Respondent and whether the requirements in section 443(1) of the Act had been met. The Commission needed to assess the evidence provided by the Applicant to determine if the conditions for a protected action ballot order were satisfied. The Applicant submitted a statutory declaration of Sam Littlewood, outlining the steps taken in bargaining with the Respondent and affirming that it had been, and is, genuinely trying to reach agreement.

The Commission considered the statutory declaration and the material before it, finding that there was a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the Act had been met. The Commission was satisfied that the Applicant had genuinely been trying to reach agreement with the Respondent and that the conditions for a protected action ballot order were fulfilled.

In light of the above, the Commission issued an Order in PR745442, allowing the Applicant to proceed with a protected action ballot. The Commission determined the matter on the papers without holding a hearing, as the Respondent did not oppose the application. The final orders were issued separately in PR745443.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established