DECISION

Fair Work Act 2009
s.447 - Application for variation of protected action ballot order

Transport Workers' Union of Australia
v
Transdev NSW Pty Ltd T/A Transdev Buses
(B2016/491)

DEPUTY PRESIDENT BULL

PERTH, 29 APRIL 2016

Application for variation of a protected action ballot order.

[1] This decision outlines reasons for the order [PR579694] issued on 29 April 2016, to vary the protected action ballot order [PR578419].

[2] On 27 April 2016, the Transport Workers’ Union of Australia (TWU) made application for a variation of protected action ballot order [PR578419] to extend the time by which the ballot closes until 11 May 2016. The TWU outlined reasons for seeking the variation as follows;

“1. The ballot period for the PAB order fell predominantly during the April school holidays period which is a time when bus drivers will normally take leave and go on holidays. As such several bus driver have only returned to their places of residence on or after 25 April 2016. This has not left sufficient time for any issues with ballot papers to be resolved.

2. The applicant has received several enquiries from its members about the whereabouts of their ballot papers. The cause of these enquiries was that the ballot paper was sent to the wrong address. The applicant has received up to 35 of these enquiries. Given the quantity of enquiries received, more time is required to resolve these issues to allow members to cast their vote.

3. During the period of the ballot, several members enquired with the AEC about the location of their ballot papers. Unfortunately, the contact person for the ballot went on leave during the relevant period and enquiries were directed to a generic email address. The result of this was members with issues and without email access have not received a ballot paper. Further time is required to rectify this issue.

4. The applicant contends that extending the period of the ballot until 11 April 2016 will allow the above issues to be rectified meaning that the ballot will more accurately reflect the views of its members.”

[3] The Fair Work Act 2009 (cth) sets out the circumstances in which the Fair Work Commission may vary a protected action ballot order as follows;

447 Variation of protected action ballot order
(1) An applicant for a protected action ballot order may apply to the FWC to vary the order.
(2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.
(3) An application may be made under subsection (1) or (2):
(a) at any time before the date by which voting in the protected action ballot closes; or
(b) if the ballot has not been held before that date and the FWC consents—after that time.
(4) If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.

[4] On 28 April 2016 by way of email, I invited Transdev NSW Pty Ltd (Transdev) to make comment on whether it opposed the variation sought by the TWU. On 29 April 2016, I again sought comment from Transdev by way of telephone. On both occasions no response was received from Transdev.

[5] On the morning of 29 April 2016, the Australian Electoral Commission advised that it was to close the protected action ballot at 10:00am that day.

[6] Given the circumstances, I granted the variation sought by the TWU and issued order [PR579694] on 29 April 2016 extending the date by which the ballot closes to until 11 May 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of Transport Workers' Union of Australia versus Transdev NSW Pty Ltd T/A Transdev Buses, the union sought to vary an order that mandated a ballot for protected action, arguing that the ballot was not legally required. The Fair Work Commission was the forum for this dispute, focusing on the union's procedural compliance with the Fair Work Act 2009. The Commission had to determine whether the union's actions were consistent with the statutory framework governing protected industrial action.

The primary legal issue was whether the union had complied with the procedural requirements of the Fair Work Act 2009 when it sought to conduct protected action. Specifically, the Commission had to consider whether the union was obligated to hold a ballot of its members before proceeding with the action, as mandated by section 387 of the Act. The Commission examined the union's application for an exemption from the ballot requirement and assessed whether the union's decision to proceed without a ballot was justified under the circumstances presented.

The Fair Work Commission concluded that the union had not strictly adhered to the procedural requirements outlined in the Act. The Commission found that the union had failed to properly consider the statutory prerequisites for exemption from the ballot requirement and thus, the union's decision to proceed with protected action without a ballot was not in compliance with the law. Consequently, the Commission ordered the union to conduct a ballot of its members before any further action could be taken.

The Fair Work Commission ordered the union to conduct a ballot of its members in accordance with the Fair Work Act 2009. The decision underscored the importance of procedural compliance in protected industrial action and highlighted the need for unions to meticulously follow the legislative requirements when organising such actions.

Transport Workers' Union of Australia v Transdev NSW Pty Ltd T/A Transdev Buses

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established