Transport Workers' Union of Australia v CDC Darwin Pty Ltd, CDC Regional NT Pty Ltd and Buslink NT Pty Ltd

[2025] FWC 2435

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v

CDC Darwin Pty Ltd, CDC Regional NT Pty Ltd and Buslink NT Pty Ltd

(B2025/1306)

COMMISSIONER YILMAZ

MELBOURNE, 19 AUGUST 2025

Proposed protected action ballot of employees of CDC Darwin Pty Ltd, CDC Regional NT Pty Ltd and Buslink NT Pty Ltd

This is an application by the Transport Workers’ Union of Australia (TWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of CDC Darwin Pty Ltd, CDC Regional NT Pty Ltd and Buslink NT Pty Ltd (CDC or Employers).

On being served the application, the Employers objected to the notice period being 3 working days for taking protected industrial action in respect of the proposed actions in ballot questions 1, 2 and 3. The Employers sought an extension to the notice period of 7 working days contending that there were exceptional circumstances justifying the extension. The Employers raised concerns in their written submissions regarding its capacity to notify the public of transport disruptions that give rise to public safety needs. In particular, CDC raised the geographically diverse and sparse locations their services cover, the significant reliance of the public (including school aged children) on the bus services operated by the Employers, and the complexity in notifying the travelling public of impacted routes. The Applicant contested the exceptional circumstances warranting an extension of the notice period. Nevertheless, on 19 August 2025, the parties advised the Commission that a consent position was reached reflecting an extended notice period of 5 working days in respect of the proposed industrial actions contemplated by questions 1, 2 and 3 of the ballot questions. On this basis the parties sought the hearing scheduled to determine the contested application be vacated and the matter determined on the papers.

Accordingly, taking into account the written submissions and the consent position, there are exceptional circumstances to justify a longer period of written notice than 3 days referred to in s.414(2)(a), with a period of 5 working days to be specified for the actions listed in question 1, 2 and 3 of the Ballot Questions in accordance with 443(5) and s.414(2)(b) of the Act.

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 declaration of William Cheffirs, Industrial Officer, setting out the steps taken by the TWU in bargaining with the Employers and that it has been, and is, genuinely trying to reach agreement with CDC, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero Voting). Vero Voting has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 2 September 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR790835.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

COMMISSIONER

[1] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers’ Union of Australia (TWU) applied to the Fair Work Commission for a protected action ballot order concerning certain employees of CDC Darwin Pty Ltd, CDC Regional NT Pty Ltd, and Buslink NT Pty Ltd. The application sought to establish the conditions under which the proposed protected industrial action could proceed, specifically focusing on the notice period required for the ballot. The employers, collectively referred to as CDC, objected to the standard three-day notice period prescribed by the Fair Work Act 2009, arguing that exceptional circumstances warranted an extension to seven working days. They cited logistical challenges in notifying the public about potential transport disruptions, especially in sparsely populated and geographically diverse areas, and the reliance of the public, including school children, on their services. The TWU opposed the extension, leading to a consent position being reached where the notice period was extended to five working days. The matter was determined on the papers, and the Commission was satisfied that all requirements under the Fair Work Act had been met for the proposed agreement.

The legal issues before the Commission were whether the exceptional circumstances cited by CDC justified an extension to the notice period beyond the standard three working days and, if so, what the appropriate length of the extended notice period should be. The Commission had to consider the evidence provided by the parties regarding the potential impact on the public and the logistical challenges faced by CDC in notifying the public of potential transport disruptions. The Commission also had to ensure that the extended notice period did not unduly delay the conduct of the ballot and that it complied with the statutory requirements under the Fair Work Act.

The Commission found that the circumstances presented by CDC did constitute exceptional circumstances warranting an extension to the notice period. The reliance of the public, including school children, on the bus services, the geographic diversity and sparsity of the areas served, and the complexity of notifying the public about impacted routes were all significant factors. Therefore, the Commission determined that a five-working-day notice period was appropriate. The Commission was also satisfied that the TWU had genuinely attempted to reach an agreement with CDC and that all procedural requirements under the Fair Work Act had been met. The date by which voting was to close was set as 2 September 2025, and the ballot agent was approved by the Commission. The matter was then referred to another Member of the Commission for the compulsory conciliation conference under section 448A of the Act.

The Commission issued an order setting the notice period for the proposed industrial actions at five working days and determined that the ballot would close on 2 September 2025. The order also required the attendance of all bargaining representatives at a compulsory conciliation conference to be held under section 448A of the Fair Work Act. The Commission's decision addressed the exceptional circumstances cited by the employers and ensured that the extended notice period was sufficient to allow for proper notification of the public while also complying with the statutory requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established