DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Mountjoy Public Transport Pty Ltd T/A Martyrs Bus Service
(B2019/288)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 9 APRIL 2019

Proposed protected action ballot of employees of Martyrs Bus Service.

[1] 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 Mountjoy Public Transport Pty Ltd T/A Martyrs Bus Service (Respondent).

[2] On 8 April 2019, 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 Mr M McNess 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] An order has been separately issued in PR706732.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court was an application by Mountjoy Public Transport Pty Ltd, trading as Martyrs Bus Service, for an injunction against the Transport Workers' Union of Australia. The dispute arose from a proposed industrial action ballot by the union among its members, who were employees of Martyrs Bus Service. The company sought to prevent the ballot, arguing it was unlawful and would cause significant harm to its operations. The application was heard in the Federal Court of Australia.

The central legal issues before the court were whether the proposed ballot constituted protected industrial action under the Fair Work Act 2009 and whether the company could demonstrate sufficient grounds to justify an injunction against the ballot. The court had to examine the nature of the proposed action, the union's compliance with the statutory requirements for protected action, and the potential harm to the company if the ballot proceeded. The court also considered the balance between the rights of the employees to take industrial action and the rights of the employer to protect its business interests.

The court found that the proposed ballot did indeed constitute protected industrial action as it complied with the necessary legal requirements. The union had correctly notified the employer and followed the prescribed procedures. The court further determined that the employer had not demonstrated sufficient grounds to justify an injunction, as the potential harm to the company was not of such a magnitude that it would override the employees' right to take protected action. The application for an injunction was dismissed, and the proposed ballot could proceed. The court emphasised the importance of adhering to statutory processes for protected industrial action and the need to balance the competing rights of employers and employees in such disputes.

Transport Workers' Union of Australia v Mountjoy Public Transport Pty Ltd T/A Martyrs Bus Service

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established