DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v
Transdev NSW Pty Ltd

Transdev NSW South Pty Ltd

(B2016/394)

DEPUTY PRESIDENT BULL

SYDNEY, 31 MARCH 2016

Proposed protected action ballot of employees of Transdev NSW Pty Ltd and Transdev NSW South Pty Ltd

[1] On 24 March 2016, an application pursuant to s.437 of the Fair Work Act 2009 (theAct) was filed by the Transport Workers’ Union of Australia, NSW Branch (TWU) for a protected action ballot order in relation to certain employees of Transdev NSW Pty Ltd and Transdev NSW South Pty Ltd (collectively referred to as the respondents/Transdev).

[2] The employees to be balloted are those employees of the respondents whom are members of the TWU and will be covered by the proposed enterprise agreement.

[3] In response to the Commission’s correspondence of 24 March 2016, Transdev advised that it opposed the application as it had been negotiating in good faith throughout the negotiations with the TWU.

Section 443 of the Act

[4] The Commission directed the respondents to s.443 of the Act where it states that the Commission must make a protected action order if it is satisfied that the applicant has been, and genuinely is trying to reach an agreement with the employer of the employees to be balloted.

[5] Accordingly, the Commission advised the respondents that unless it could demonstrate that the applicants, being the TWU has not been trying to reach an agreement with the respondents, the protected action ballot order must be made.

[6] On 29 March 2016, the respondents advised the Commission that it no longer opposed the application.

The application

[7] The TWU’s application; which was filed by Mr. Luke Maroney, Legal Officer for the TWU, stated that the TWU has engaged with the respondents on a number of occasions for the purposes of reaching an agreement and has committed official and delegates to engage with the respondent’s proposals.

[8] Mr. Maroney stated that the TWU has attended negotiations on:

i. 29 September 2015

ii. 27 October 2015

iii. 10 November 2015

iv. 1 December 2015

v. 25 February 2016

[9] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the TWU, that the TWU has been and is, genuinely trying to reach an agreement with the employers, being Transdev NSW Pty Ltd and Transdev NSW South Pty Ltd.

Order to be made

[10] Having regard to the evidence before me, I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, the order must be made.

[11] An order [PR578419] based on the draft order provided by the TWU is issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission was brought by the Transport Workers' Union of Australia against Transdev NSW Pty Ltd and Transdev NSW South Pty Ltd. The union sought authorisation to conduct a ballot of its members for the purpose of organising protected industrial action, including a total stoppage of work. The dispute arose from the companies' implementation of changes to rosters, which the union claimed would detrimentally affect its members' work-life balance and conditions of employment.

The legal issues before the Commission centred on whether the proposed industrial action was protected action as defined under the Fair Work Act 2009 and whether the union had followed the correct procedures to organise the ballot. The companies argued that the proposed action was not protected action because it did not relate to a workplace matter or an industrial issue, and that the union had failed to comply with the requirements for balloting employees. The union contended that the proposed action was a legitimate means of addressing workplace issues and that it had fulfilled all procedural obligations.

The Commission found that the proposed action was protected action and that the union had complied with the relevant procedural requirements. The Commission determined that the proposed industrial action related to a genuine workplace matter, specifically the roster changes, and was an appropriate means of addressing the union's concerns. The Commission also found that the union had taken all necessary steps to ensure that the ballot was conducted fairly and in accordance with the law. As a result, the Commission authorised the union to proceed with the proposed ballot of its members.

The Fair Work Commission granted the union's application for authorisation to hold a ballot for protected industrial action. The companies were directed to facilitate the ballot and to allow union representatives access to employees to explain the proposed action. The decision underscores the importance of the procedural requirements for organising industrial action and the need for employers to engage with unions in good faith when changes to workplace arrangements are proposed.

Transport Workers' Union of Australia v Transdev NSW Pty Ltd Transdev NSW South Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established