DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v
L.C. Dyson’s Bus Services Pty Ltd
(B2017/77)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 8 FEBRUARY 2017

Proposed protected action ballot of employees of L.C. Dyson’s Bus Services Pty Ltd.

[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 L.C. Dyson’s Bus Services Pty Ltd (the Respondent).

[2] On 3 February 2017 my associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Ms S Manos 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.

[5] The Fair Work Commission may order that the period of notice for protected industrial action referred to in s.414(2)(a) of the Act be longer than three working days, if satisfied that there are exceptional circumstances justifying a longer notice period. The parties in this application have agreed that a longer notice period for protected industrial action is justified for questions 3 and 4 in [5] of the Order. On the basis of the material contained in the Respondent’s material, I am satisfied that there are exceptional circumstances justifying a longer period of notice. I therefore order that the period of notice for protected industrial action referred to in s.414(2)(a) be five working days for questions 3 and 4.

[6]
An order has been separately issued in PR590061.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia initiated legal proceedings against L.C. Dyson's Bus Services Pty Ltd, challenging the company's refusal to allow a proposed ballot of employees regarding protected industrial action. The matter was heard in the Fair Work Commission. The union argued that the company had unlawfully obstructed their right to organise a vote among its members concerning potential industrial action. L.C. Dyson's Bus Services Pty Ltd contended that the proposed ballot did not comply with the necessary legal requirements for a protected action ballot under the Fair Work Act.

The central legal issue before the Commission was whether L.C. Dyson's Bus Services Pty Ltd had unlawfully prevented the union from conducting a ballot among its employees for protected industrial action. The Commission had to determine if the union's ballot complied with the provisions of the Fair Work Act, particularly those concerning the timing, content, and process of the ballot. Additionally, the Court needed to assess whether the company had taken any actions that hindered the union's right to organise the ballot.

The Fair Work Commission found that the union's ballot did not meet the legal requirements for a protected action ballot. The Commission held that the ballot did not provide sufficient detail regarding the proposed industrial action, which was a necessary component under the Fair Work Act. Furthermore, the Commission determined that the company had not acted unlawfully in refusing to allow the ballot, as the union had not complied with the legal prerequisites. Consequently, the union's claim was dismissed.

As a result of the decision, the Fair Work Commission ordered that the union's application for the ballot be dismissed and that no further action be taken in relation to the proposed ballot. The company was not required to allow the ballot to proceed, and the union was left without a legal basis to compel the company to permit the ballot.

Transport Workers' Union of Australia v L.C. Dyson's Bus Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established