DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Hurstbridge Bus & Coach Pty Ltd T/A Panorama Coaches
(B2019/531)

DEPUTY PRESIDENT YOUNG

MELBOURNE, 12 JULY 2019

Proposed protected action ballot of employees of Hurstbridge Bus & Coach Pty.

[1] This is an application by the Transport Workers’ Union of Australia (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Hurstbridge Bus & Coach Pty Ltd (the Respondent) who are to be covered by the proposed agreement and are represented by the Applicant.

[2] On 9 July 2019 the Respondent advised that it objected to the application on the grounds including that the Applicant was not genuinely trying to reach an agreement. The matter was listed for hearing on the 11 July 2019.

[3] On 10 July 2019 the Respondent advised that it withdrew its objection and did not contest the Applicant’s application for a protected action ballot order.

[4] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[5] On the basis of the material before me, including the statutory declaration of Mr Imran Malik 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.

[6] On the basis of the material provided by the Respondent, and noting the consent of the Applicant, I am also satisfied that pursuant to section 443(5) of the Act there are exceptional circumstances justifying the period of notice of action to be taken by employees being longer than three working days. I consider that longer period to be five working days.

[7] An order has been separately issued in [PR710287].

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers’ Union of Australia (Applicant) sought a protected action ballot order from the Fair Work Commission (FWC) in relation to certain employees of Hurstbridge Bus & Coach Pty Ltd (Respondent). The application was made under section 437 of the Fair Work Act 2009. The Respondent initially objected to the application, citing that the Applicant was not genuinely trying to reach an agreement. However, the Respondent later withdrew its objection and did not contest the application. Consequently, the Deputy President decided to determine the matter based on the papers without holding a hearing.

The primary legal issue before the FWC was whether the Applicant had genuinely tried to reach an agreement with the Respondent and whether the notification time for the proposed agreement was adequate. Additionally, the court needed to decide if there were exceptional circumstances justifying a longer notice period for the employees to take action. The Applicant provided a statutory declaration by Mr Imran Malik, outlining the steps taken in bargaining with the Respondent and affirming the Applicant's genuine efforts to reach an agreement. The Respondent also provided material that, along with the Applicant's consent, allowed the court to consider whether there were exceptional circumstances justifying a longer notice period than the statutory minimum of three working days.

The Deputy President concluded that there was a notification time in relation to the proposed agreement and that the requirements under section 443(1) of the Act had been met based on the evidence provided. The court also found that there were exceptional circumstances justifying a longer notice period for employees to take action, setting the period at five working days. The Deputy President issued an order accordingly, separate from the decision.

The court's final orders included granting the Applicant's application for a protected action ballot order, with a notification period of five working days for the employees, as determined by the Deputy President.

Transport Workers' Union of Australia v Hurstbridge Bus & Coach Pty Ltd T/A Panorama Coaches

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established