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

[2016] FWC 1928

[2016] FWC 1928

FAIR WORK COMMISSION

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

<Price code A, PR578418>