Transport Workers' Union of Australia v Surfside Buslines Pty Ltd

[2022] FWC 3066

[2022] FWC 3066

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Surfside Buslines Pty Ltd

(B2022/1709)

COMMISSIONER HUNT BRISBANE, 18 NOVEMBER 2022

Proposed protected action ballot of employees of Surfside Buslines Pty Ltd

1. The Transport Workers’ Union of Australia (the TWU) has made an application under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Surfside Buslines Pty Ltd (the Respondent). The application was accompanied by a statutory declaration of James Wilkinson, TWU Organiser.

1. The Respondent notified two objections to the application. A hearing by video was listed for 15 November 2022. The Respondent however sought an adjournment of the hearing advising that the parties were in discussions in hopes to reach a consent position. The TWU consented to the adjournment of the hearing. The hearing was thereby adjourned to 18 November 2022. 

1. On Thursday, 17 November 2022, the parties wrote to my chambers advising that the parties have reached a consent position in relation to the written notice referred to in s.414(2)(a) of the Act and withdrew their objection in relation to the limitation / exclusion of school services employees. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the declaration of Mr Wilkinson, setting out the steps taken by the TWU in bargaining with the Respondent and confirming that the TWU has been, and is, genuinely trying to reach agreement with the Respondent, I am also satisfied there is a notification time in relation to the proposed agreement and the requirements in section 443(1) of the Act have been met. 

1. I am satisfied that the TWU has given notice in accordance with section 440 of the Act.

1. As stipulated, the parties reached a consent position regarding the period of written notice being longer than three working days for some of the questions within the order. The parties considered it appropriate for the Respondent to be provided with five working days’ notice.

1. Section 443(5) of the Act gives the Commission the discretion, where it is satisfied that there are exceptional circumstances justifying the period of written notice being longer than three days, to specify a longer period of up to seven working days’ notice.

1. In my view, specifying a longer period of notice for some of the questions within the Order is justified by the particular exceptional circumstances in this case as detailed in the Employer’s response, particularly ensuring that appropriate contingency arrangements are put in place and to ensure that users of the Respondent’s service can be notified of any planned protected industrial action.

1. The protected action ballot order will specify a required period of notice of at least five working days for questions 1, 2, 3, 4, 5 and 6. The protected action ballot order will specify a required period of notice of at least three working days for questions 7 and 8.

1. The TWU also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M. Michael, the Managing Director of CiVS has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots.

1. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVS has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

1. Therefore, I appoint CiVS as the protected action ballot agent.

1. The Order [PR748049] will be issued concurrently with this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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