Theofanis Mitsios v KDR Victoria Pty Ltd T/A Yarra Trams

[2019] FWC 5109

[2019] FWC 5109

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Theofanis Mitsios
v
KDR Victoria Pty Ltd T/A Yarra Trams
(B2019/564)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 23 JULY 2019

Proposed protected action ballot of employees of KDR Victoria Pty Ltd.

[1] This is an application by Theofanis Mitsios (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of KDR Victoria Pty Ltd T/A Yarra Trams (Respondent).

[2] On 19 July 2019, my Associate was advised that the Respondent did not object to the application provided that the Applicant agreed to provide extended notice periods in relation to industrial action specified in particular questions of the proposed ballot.

[3] The Applicant and Respondent agree, in relation to certain forms of the proposed industrial action that is to be the subject of the protected action ballot, that the period of written notice referred to in s.414(2)(a) of the Act should be longer than 3 working days. The Respondent provided material directed to the circumstances that are said to justify a longer period. On the basis of the material, I am satisfied the material discloses exceptional circumstances and that those circumstances justify a longer notice period. There are no grounds of which I am aware which would cause me not to exercise my discretion given my finding. The parties have agreed on variable extended notice periods being 5 working days for the proposed industrial action in question 1 of the order and 7 working days for the proposed industrial action in questions 7-12 inclusive. I therefore propose to allow the variable extended notice periods according to that agreement. The Order will reflect these variable extended notice periods. Based on this, I am satisfied and exercise my discretion under s.443(5) to extend the notice periods.

[4] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[5] On the basis of the material before me, including the statutory declaration of Mr T Mitsios setting out the steps taken by him in bargaining with the Respondent and that he 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.

[6] An order has been separately issued in PR710596.

DEPUTY PRESIDENT

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