Transport Workers' Union of Australia v Surfside Buslines Pty Ltd

[2023] FWC 1213

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Surfside Buslines Pty Ltd

(B2023/481)

VICE PRESIDENT CATANZARITI

MELBOURNE, 24 MAY 2023

Proposed protected action ballot of employees of Surfside Buslines Pty Ltd

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 Surfside Buslines Pty Ltd (Respondent).

On 22 May 2023, 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 James Wilkinson of the Applicant declared on 18 May 2023, 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 PR762454.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission recently heard an application from the Transport Workers' Union of Australia against Surfside Buslines Pty Ltd, seeking authorisation for a protected action ballot in relation to certain employees. The application was made under section 437 of the Fair Work Act 2009, which allows unions to seek such authorisation when they have been unable to reach an agreement with an employer during bargaining. The Surfside Buslines Pty Ltd did not oppose the application, leading the Vice President to determine the matter on the papers without a hearing.

The legal issues before the court were whether the union had genuinely attempted to reach an agreement with the employer and whether the statutory notification period had been met, as required by section 443(1) of the Act. The union provided a statutory declaration by James Wilkinson, setting out the steps taken in bargaining with the employer and confirming their genuine efforts to reach an agreement. The Vice President was satisfied that these requirements had been met, as well as the notification time for the proposed agreement.

Based on the material before the Vice President, including the statutory declaration, the court found that the union had indeed been genuinely trying to reach an agreement with the employer. The Vice President was also satisfied that the statutory notification period had been met, thereby fulfilling the requirements of section 443(1) of the Act. Consequently, the Vice President authorised the protected action ballot, as requested by the union.

An order was issued in PR762454, granting the Transport Workers' Union of Australia permission to hold a protected action ballot for the employees of Surfside Buslines Pty Ltd. The decision highlights the importance of genuine bargaining efforts and compliance with statutory notification periods when seeking authorisation for a protected action ballot under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established