DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v
Busways Blacktown Pty Ltd T/A Busways Group; Busways Blacktown North Pty Ltd T/A Busways Group; Busways Campbelltown Pty Ltd T/A Busways Group; Busways Campbelltown South Pty Ltd T/A Busways Group; Busways Camden Pty Ltd T/A Busways Group; Busways Camden South Pty Ltd T/A Busways Group; Busways Gosford Pty Ltd T/A Busways Group; Busways Gosford North Pty Ltd T/A Busways Group; Busways Wyong Pty Ltd T/A Busways Group; Busways Wyong North Pty Ltd T/A Busways Group
(B2016/705)

DEPUTY PRESIDENT BULL

SYDNEY, 12 JULY 2016

Proposed protected action ballot of employees of Busways Blacktown Pty Ltd, Busways Blacktown North Pty Ltd, Busways Campbelltown Pty Ltd, Busways Campbelltown South Pty Ltd, Busways Camden Pty Ltd,Busways Camden South Pty Ltd, Busways Gosford Pty Ltd, Busways Gosford North Pty Ltd, Busways Wyong Pty Ltd and Busways Wyong North Pty Ltd t/as Busways Group.

[1] On 8 July 2016, an application pursuant to s.437 of the Fair Work Act 2009 (theAct) was filed by the Transport Workers’ Union of Australia (TWU) for a protected action ballot order in relation to certain employees employed by the following companies;

1. Busways Blacktown Pty Ltd;

2. Busways Blacktown North Pty Ltd;

3. Busways Campbelltown Pty Ltd;

4. Busways Campbelltown South Pty Ltd;

5. Busways Camden Pty Ltd;

6. Busways Camden South Pty Ltd;

7. Busways Gosford Pty Ltd;

8. Busways Gosford North Pty Ltd;

9. Busways Wyong Pty Ltd;

10. Busways Wyong North Pty Ltd.

[2] The employees to be balloted are those employees of the aforementioned companies who are members of the TWU and who are currently employed under the Busways Group (Sydney) and the Transport Workers’ Union Fair Work Agreement 2012.

[3] In support of its application, the TWU filed a statement made by Mr Nimrod Nyols (signed 8 July 2016) Union Official for the TWU. Mr Nyols’ statement advised that the current enterprise agreement – Busways Group (Sydney) and the Transport Workers’ Union Fair Work Agreement 2012 expired on 30 June 2016. Mr Nyols stated that discussions had been convened in view of negotiating a new replacement agreement on:

1. 24 March 2016; and

2. 22 April 2015.

[4] By way of email dated 11 July 2016, Mr David Collins, acting on behalf of the companies, advised that they did not object to the TWU application.

[5] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the TWU, that the TWU has been and is, genuinely trying to reach an agreement with the companies.

[6] Having regard to the evidence before me, I am satisfied that the requirements in s.443(1) of the Act have been met and, accordingly, an Order [PR582601] will be made.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia sought an injunction against Busways Blacktown Pty Ltd T/A Busways Group, and related entities, to prevent them from holding a ballot for industrial action. The dispute arose from disagreements over the scope of a proposed industrial action ballot which the union considered to be potentially protected action under the Fair Work Act 2009 (Cth). The parties appeared before the Fair Work Commission.

The central issue before the Commission was whether the proposed ballot constituted protected action, and if so, whether it was genuinely proposed in accordance with the requirements of the Fair Work Act. This included examining the nature and scope of the industrial action proposed and whether it was genuinely being considered by the employees of the various Busways entities.

The Commission found that the ballot did indeed constitute protected action as it related to industrial action involving employees of multiple entities within the Busways Group. The proposed action was found to be genuinely considered by the employees, as it related to terms and conditions of employment, and was not an attempt to avoid the provisions of the Fair Work Act. Given the broad scope of the proposed action, encompassing employees across several Busways entities, the Commission concluded that the ballot was genuinely proposed. Consequently, the injunction sought by the union was refused.

The Fair Work Commission declined to grant the injunction sought by the union, finding that the proposed ballot constituted protected action and was genuinely proposed in accordance with the Fair Work Act.

Transport Workers' Union of Australia v Busways Blacktown Pty Ltd T/A Busways Group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established