Transport Workers Union of Australia v CDC Victoria Pty Ltd

[2022] FWC 611

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers Union of Australia

CDC Victoria Pty Ltd

(B2022/208)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 18 MARCH 2022

Proposed protected action ballot of employees of CDC Victoria Pty Ltd.

This is an application by the Transport Workers Union of Australia (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 Victoria Pty Ltd (the Respondent).

On 17 March 2022, my Associate was advised that the Respondent objected to the application. However, on 17 March 2022, the parties were able to reach a consent position.

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 Mr Bob Lean of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An order has been separately issued in PR739465.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers Union of Australia has filed an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of CDC Victoria Pty Ltd. The application was initially opposed by CDC Victoria, but a consent position was reached on 17 March 2022, allowing the matter to be determined on the papers without a hearing. The Deputy President of the Fair Work Commission, Clancy, was tasked with making the decision.

The legal issues before the court involved whether the union had fulfilled the notification time requirements and had genuinely attempted to reach an agreement with CDC Victoria. The union submitted a declaration from Mr. Bob Lean, stating that it had been genuinely trying to reach an agreement and that the notification time for the proposed agreement had been met. The court had to determine if the union met the requirements under section 443(1) of the Fair Work Act 2009.

The Deputy President of the Fair Work Commission, Clancy, found that the union had met the notification time requirements and had genuinely attempted to reach an agreement with CDC Victoria. The declaration from Mr. Bob Lean, along with the other material before the court, satisfied the court that the union had fulfilled the necessary conditions. Therefore, the court decided to grant the application for a protected action ballot order. An order was separately issued in PR739465.

The court's decision was based on the evidence presented and the compliance with the legal requirements under the Fair Work Act 2009. The Deputy President, Clancy, concluded that the union had met the notification time requirements and had genuinely attempted to reach an agreement with CDC Victoria. The court's decision allowed the union to proceed with the protected action ballot order, as outlined in the separately issued order in PR739465.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established