Transport Workers' Union of Australia v ComfortDelgro Corporation Australia Pty Ltd T/A CDC NSW Summary

[2022] FWC 177

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia

ComfortDelgro Corporation Australia Pty Ltd T/A CDC NSW

(B2022/32)

VICE PRESIDENT CATANZARITI

SYDNEY, 27 JANUARY 2022

Proposed protected action ballot of employees of ComfortDelgro Corporation Australia Pty Ltd T/A CDC NSW

This is an application by the Transport Workers’ Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of ComfortDelgro Corporation Australia Pty Ltd T/A CDC NSW (Respondent).

On 25 January 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

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 statutory declaration of Simon Bridge of the Applicant declared on 19 January 2022, 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 PR737806.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers’ Union of Australia applied to the Fair Work Commission for a protected action ballot order against ComfortDelgro Corporation Australia Pty Ltd T/A CDC NSW. The application was made under section 437 of the Fair Work Act 2009, which allows for the protection of employees who are taking or proposing to take protected action. The union sought the order to ballot its members on potential industrial action against the respondent, a bus company operating in New South Wales.

The legal issues before the Vice President were whether the union had genuinely attempted to reach an agreement with the respondent, and whether the requirements of section 443(1) of the Act had been met, including the notification time for the proposed agreement. The union submitted that it had been genuinely attempting to reach an agreement with the respondent, and that it had complied with the notification requirements of the Act. The respondent did not oppose the application.

The Vice President found that the union had genuinely attempted to reach an agreement with the respondent, and that the requirements of section 443(1) of the Act had been met. The union had provided evidence of its bargaining efforts, including a statutory declaration from a representative, and had complied with the notification time for the proposed agreement. The Vice President therefore decided to determine the matter on the papers without holding a hearing, and made an order in favour of the union.

The Fair Work Commission issued an order for a protected action ballot, allowing the union to ballot its members on potential industrial action against the respondent. The order was made in accordance with the provisions of the Fair Work Act 2009, and is subject to any appeal to the Federal Court of Australia.

Transport Workers' Union of Australia v ComfortDelgro Corporation Australia Pty Ltd T/A CDC NSW

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established