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

[2025] FWC 2714

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

(B2025/1428)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 12 SEPTEMBER 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.

I note that the TWU[1] and the Independent Transport Union[2] (ITU) have each made separate applications for protected action ballot orders in relation to the same proposed agreements.

On 12 September 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 of 7 calendar days for taking protected industrial action. This was based upon CDC’s contention that there were exceptional circumstances justifying the extension. The TWU subsequently confirmed its consent to 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 Isobel Riggall, Legal 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 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 1 October 2025.[3] 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 arising from the questions in clause 5 of the Order will be 7 calendar days.

An Order has been separately issued in PR791687.

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] B2025/731 and B2025/1050.

[2] B2025/1150.

[3] 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 concerning employees of ten related bus transport employers in Victoria. The employers, CDC Mildura, CDC Ballarat, CDC Geelong, CDC Oakleigh, CDC Sunshine, CDC Tullamarine, CDC Wyndham, CDC Victoria East, CDC Victoria West, and CDC Victoria North-West, are all entities operating bus and transport services in Victoria and are engaged in collective bargaining for a single enterprise agreement. Both the Transport Workers' Union and the Independent Transport Union have separately applied for protected action ballot orders in relation to the same proposed agreements.

The key legal issues for the Fair Work Commission to determine were whether the union had met the statutory requirements for a protected action ballot under the Act, particularly in relation to the notice period for industrial action. The Commission also had to decide whether the extended notice period of seven calendar days, as proposed by the employers, was justified under the exceptional circumstances clause of the Act. The application for the ballot was made in the context of ongoing negotiations for a new enterprise agreement, and the Commission needed to ensure that all procedural requirements were met to allow for a lawful and effective ballot process.

The Fair Work Commission, after considering the submissions and the consent position between the union and the employers, granted the application. The Deputy President was satisfied that the union had genuinely attempted to reach an agreement and that the extended notice period was justified under the exceptional circumstances clause. The ballot was to be conducted by Fair Vote Services Pty Ltd, which had been approved as a ballot agent. The voting period was set to close on 1 October 2025, and the period of notice for any industrial action arising from the proposed agreement was extended to seven calendar days. The Commission also decided to conduct a compulsory conciliation conference to facilitate further negotiations between the parties.

The Fair Work Commission issued an order granting the union's application for a protected action ballot order. The order specified the extended notice period of seven calendar days for taking protected industrial action and established the ballot period ending on 1 October 2025. The Commission also assigned the matter to another member to conduct the compulsory conciliation conference and issued an order for the attendance of all bargaining representatives. The Deputy President concluded that the application met all statutory requirements and that the extended notice period was justified, leading to the approval of the ballot order and the scheduling of the conciliation conference.

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