Transport Workers' Union of Australia v CDC Geelong Pty Ltd, CDC Oakleigh Pty Ltd, CDC Sunshine Pty Ltd, CDC Tullamarine Pty Ltd, CDC Wyndham Pty Ltd, CDC Victoria East Pty Ltd, CDC Victoria West Pty Ltd, Cdc

[2025] FWC 1241

[2025] FWC 1241

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v

CDC Geelong Pty Ltd, CDC Oakleigh Pty Ltd, CDC Sunshine Pty Ltd, CDC Tullamarine Pty Ltd, CDC Wyndham Pty Ltd, CDC Victoria East Pty Ltd, CDC Victoria West Pty Ltd, CDC Victoria North-West Pty Ltd, CDC Mildura Pty Ltd, CDC Ballarat Pty Ltd

(B2025/731)

COMMISSIONER YILMAZ MELBOURNE, 2 MAY 2025

Proposed protected action ballot of employees of 10 related bus transport employers in Victoria

1. 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 the following employers:

·   CDC Geelong Pty Ltd

·   CDC Oakleigh Pty Ltd

·   CDC Sunshine Pty Ltd

·   CDC Tullamarine Pty Ltd

·   CDC Wyndham Pty Ltd

·   CDC Victoria East Pty Ltd

·   CDC Victoria West Pty Ltd

·   CDC Victoria North-West Pty Ltd

·   CDC Mildura Pty Ltd and

·   CDC Ballarat Pty Ltd

1. The employers, who are related entities, operate bus and transport services in Victoria and are bargaining for a single enterprise agreement. They are referred collectively as CDC or Employers.

1. On being served the application, the Employers objected to the notice period for taking protected industrial action in respect of the proposed actions being 3 days. 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. These concerns are heightened given that its diverse geographical coverage as an operator of bus services to the travelling public (including school aged children). The Applicant contested the exceptional circumstances warranting an extension of the notice period. Nevertheless, on 2 May 2025, just prior to the listed hearing, the parties advised the Commission that a consent position was reached to amend the proposed Orders reflecting an extended notice period of 7 calendar days, as opposed to the proposed 3 days and 7 working days sought by the Employers. On this basis, the Employers, withdrew their objection to the Application.

1. 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 7 calendar days to be specified in accordance with 443(5) and s.414(2)(b) of the Act.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the declaration of Imran Malik, Lead Organiser, 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.

1. The ballot is to be conducted by Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

1. 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 20 May 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. In respect of the submissions, the consent position reached and noting the Employers have withdrawn their objection based on the consent position agreed to, I am satisfied that there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) of the Act being longer than 3 working days. Pursuant to s.443(5) the period of notice required under s.414(2)(b) of the Act in each case of industrial action will be 7 calendar days.

1. An Order has been separately issued in PR786974.

1. I will proceed to conduct the s.448A compulsory conciliation conference and will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference.

COMMISSIONER

[1] This is, in effect, 12 working days from the making of the Order and was the date sought in the application.

Printed by authority of the Commonwealth Government Printer

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