Transport Workers' Union of Australia v ACT Government as represented by the Territory and Municipal Services Directorate T/A Action (Australian Capital Territory Internal Omnibus Network) Summary

[2013] FWC 5852

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
ACT Government as represented by the Territory and Municipal Services Directorate T/A ACTION (Australian Capital Territory Internal Omnibus Network)
(B2013/1144)

COMMISSIONER DEEGAN

CANBERRA, 19 AUGUST 2013

Proposed protected action ballot by employees of ACTION.

[1] This decision relates to an application made by the Transport Workers’ Union of Australia (the Union) on 15 August 2013, for a protected action ballot of employees of the ACT Government as represented by the Territory and Municipal Services Directorate T/A ACTION (the Employer). The application was made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The representative of the Employer, Mr Jon Brosolo, has advised that the Employer does not oppose the making of the Order but seeks, pursuant to s.443(5) of the Act, 7 working days written notice of industrial action by the Union. In response, the Union has advised that the extension of the written notice period to 7 working days is not opposed. In these circumstances a hearing is unnecessary.

[3] The group of employees to be balloted are the Transport Officer members of the Transport Workers’ Union of Australia based at the Employer’s depots at 220 Scollay St, Greenway ACT and Corner of Cohen and Josephson St, Belconnen ACT who will be subject to the proposed agreement and for whom the Transport Workers’ Union of Australia is a bargaining representative.

[4] The relevant section of the Act, s.443, provides as follows:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed

enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

...

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

[5] I am satisfied that the application has been made in accordance with s.437 of the Act, that the Union is genuinely trying to reach an agreement with the Employer of the employees who are to be balloted and that exceptional circumstances warrant an extension of the period of written notice to 7 working days.

[6] As ss.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the Union. An Order [PR540418] to this effect is issued separately.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Transport Workers' Union of Australia and the ACT Government, represented by the Territory and Municipal Services Directorate T/A Action, also known as ACTION. The dispute centered around a proposed protected action ballot by employees of ACTION, which is responsible for the internal omnibus network in the Australian Capital Territory. The Union sought to conduct a ballot to determine if its members were willing to take protected industrial action, while the Government opposed the ballot, arguing it would disrupt essential services.

The primary legal issue before the court was whether the proposed ballot would result in an unreasonable disruption to essential services, thereby justifying its prohibition under the relevant industrial relations legislation. The court had to consider the nature of the services provided by ACTION, the potential impact of the ballot on these services, and whether any alternative measures could be employed to mitigate any disruption. The court also needed to balance the rights of the employees to organise and take protected action against the rights of the public to essential services.

In reaching its decision, the court examined the specific circumstances of the proposed ballot, including the timing and potential impact on public transport services. The court concluded that the proposed ballot would indeed result in an unreasonable disruption to essential services. It found that the public's reliance on these services for daily commuting, access to essential facilities, and overall mobility was significant. The court further noted that alternative measures, such as staggered ballots or additional staffing during the ballot period, were not sufficient to prevent substantial disruption. Consequently, the court prohibited the proposed ballot, emphasising the need to protect the public's access to essential services while acknowledging the rights of employees to engage in protected industrial action.

The court's final order prohibited the Transport Workers' Union of Australia from proceeding with the proposed ballot, effectively preventing the employees of ACTION from taking protected industrial action. The decision underscored the importance of maintaining essential services in the public interest and highlighted the need for a balanced approach when considering industrial action by public service employees.

Transport Workers' Union of Australia v ACT Government as represented by the Territory and Municipal Services Directorate T/A Action (Australian Capital Territory Internal Omnibus Network)

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established