Transport Workers' Union of Australia v Sydney Night Patrol & Inquiry Co Pty Ltd T/A Sydney Night Patrol

[2023] FWC 1737

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia

Sydney Night Patrol & Inquiry Co Pty Ltd T/A Sydney Night Patrol

(B2023/716)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 19 JULY 2023

Proposed protected action ballot of employees of Sydney Night Patrol & Inquiry Co Pty Ltd

This is an application by the Transport Workers' Union of Australia (TWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Respondent, Sydney Night Patrol & Inquiry Co Pty Ltd T/A Sydney Night Patrol (Sydney Night Patrol or Respondent).

On 18 July 2023, the Commission was advised that the Respondent did not object to the Application as amended to clarify the employees intended to be balloted under the Order.

In the circumstances, I have conducted a hearing to deal with several points of clarification about the terms of the proposed Order. This included confirmation of the ballot period, an issue concerning a ballot question (which was removed by consent) and clarification about the absence of other bargaining representatives for the proposed enterprise agreement.

On the basis of the material before me, including the declaration of Mr William Cheffirs, TWU Industrial Officer, setting out the steps taken by the TWU in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with Sydney Night Patrol, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Australian Electoral Commission. For the purposes of s.443(3)(c) and s.448A(2) of the Act, a ballot period of 30 working days from the date of the Order (19 July 2023) has been established by this Commission.[1]

An order has been separately issued in PR764319.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference and this Member will issue the Order requiring attendance at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

Appearances:

W Cheffirs for the Transport Workers’ Union of Australia.

L Schafer-Gardiner and R Sabu (with permission) with S La Spina and Y Loong-Lee for Sydney Night Patrol & Inquiry Co Pty Ltd.

Hearing details:

Adelaide (by video)
2023
July 19.

[1] This is the minimum period required by the Australian Electoral Commission.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the Transport Workers' Union of Australia (TWU) filed an application under section 437 of the Fair Work Act 2009 seeking a protected action ballot order concerning certain employees of Sydney Night Patrol & Inquiry Co Pty Ltd T/A Sydney Night Patrol. The application was made to the Fair Work Commission, with the Deputy President Hampton presiding over the case. The key issue before the court was whether the TWU had met the statutory requirements to proceed with a ballot for protected industrial action, specifically under section 443(1) of the Fair Work Act.

The TWU argued that it had genuinely attempted to reach an agreement with Sydney Night Patrol, and the court had to determine whether the notification time for the proposed agreement was met. The TWU submitted a declaration by Mr. William Cheffirs, an Industrial Officer, outlining the bargaining process and its efforts to reach an agreement. The court examined the evidence and concluded that the TWU had satisfied the requirements of section 443(1) of the Act. Consequently, the Deputy President Hampton found that the notification time for the proposed agreement had been met and all statutory requirements had been fulfilled.

Upon finding that the requirements were met, the court issued an order for a protected action ballot to be conducted by the Australian Electoral Commission. A ballot period of 30 working days from the date of the order, 19 July 2023, was established. A separate order was issued in PR764319. The matter will be assigned to another Member of the Commission to conduct the compulsory conciliation conference, and the Deputy President Hampton will issue the order requiring attendance at the conference. Directions will likely be issued to ensure that the parties attend the conference prepared for meaningful negotiations.

This decision highlights the importance of meeting the statutory requirements for a protected action ballot, and the court's role in ensuring that these requirements are satisfied before proceeding with the ballot. The court's decision to grant the order demonstrates its commitment to upholding the Fair Work Act and facilitating fair and effective industrial action processes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established