Transport Workers' Union of Australia v CDC Mildura Pty Ltd Summary

[2025] FWC 1846

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v

CDC Mildura Pty Ltd; CDC Ballarat Pty Ltd; 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

(B2025/1050)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 30 JUNE 2025

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

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 Mildura Pty Ltd
·CDC Ballarat Pty Ltd
·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 and
·CDC Victoria North-West Pty Ltd

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

On 27 June 2025, the Commission was advised that CDC did not object to the Application, on the basis that they had reached a consent position with the TWU whereby the proposed order would establish an extended notice period for taking protected industrial action of 7 calendar days. This was based upon CDC’s contention that there were exceptional circumstances justifying the extension. The TWU subsequently confirmed its consent with the Commission.

In the circumstances, I have decided to grant leave to amend the application and determine the matter on the papers without holding a hearing.

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.

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.

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

Having regard to the consent position reached on the extended notice period, I am satisfied that there are exceptional circumstances justifying the minimum 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.

An Order has been separately issued in PR788681.

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.

DEPUTY PRESIDENT

[1] This is, in effect, 12 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 made an application to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order. The application was in relation to certain employees of ten bus transport employers in Victoria. The employers, CDC Mildura Pty Ltd and others, collectively referred to as CDC, did not object to the application, having reached a consent position with the TWU regarding an extended notice period for taking protected industrial action. The TWU subsequently confirmed its consent with the Commission. The ballot was to be conducted by Fair Vote Services Pty Ltd, which had been approved as an eligible protected action ballot agent under section 468A of the Act.

The central legal issue for the Commission was whether the requirements for a protected action ballot order under section 443 of the Act were met. This involved determining if there was a notification time in relation to the proposed agreement and if the TWU had genuinely been trying to reach agreement with CDC. The Commission also needed to decide if the extended notice period of 7 calendar days was justified by exceptional circumstances. The Commission was required to determine if all statutory requirements had been fulfilled to grant the application.

The Commission found that the TWU had fulfilled all the statutory requirements for the application, including providing evidence of genuine attempts to reach agreement with the employers. The Commission noted that CDC had not objected to the application and had reached a consent position with the TWU, thereby establishing an extended notice period for taking protected industrial action. The Deputy President was satisfied that there were exceptional circumstances justifying the extended notice period. The Deputy President granted leave to amend the application and determined the matter on the papers without holding a hearing. An order was issued determining that the period of notice required under section 414(2)(b) of the Act in each case of industrial action would be 7 calendar days.

The Commission also determined that voting for the ballot would close on 16 July 2025, which established the ballot period for the purpose of section 448A(2) of the Act. The matter was to be assigned to another Member of the Commission to conduct a compulsory conciliation conference. The Commission issued an order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference and likely issued directions to ensure the parties attended the conference ready to conduct meaningful negotiations.

Transport Workers' Union of Australia v CDC Mildura Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established