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

[2022] FWC 70

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Transport Workers’ Union of Australia
v

Transdev NSW South Pty Ltd / Transdev NSW Pty Ltd

(B2022/18)

VICE PRESIDENT CATANZARITI

SYDNEY, 18 JANUARY 2022

Application to extend the 30 day period in relation to B2021/1219

On 17 January 2022, the Transport Workers’ Union of Australia (Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.459(3) of the Fair Work Act 2009 (Cth) (the Act) to extend the 30 day period for protected action authorised by a protected action ballot order, PR736673 made on 10 December 2021. The Order applies to certain employees of Transdev NSW South Pty Ltd / Transdev NSW Pty Ltd (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 23 December 2021. Pursuant to s.459(1)(d)(i) of the Act, the 30 day period for protected action commenced on the date of the declaration of the results of the ballot and therefore expires at midnight on 21 January 2022.

On 17 January 2022, the Respondent advised the Commission via email that it does not oppose the Transport Workers’ Union of Australia’s application to extend the 30 day period for protected industrial action. Accordingly, I have determined the matter on the basis of the documentation filed.

In addressing s.459(3) of the Act, this application is made by the Transport Workers’ Union of Australia who is the Applicant for which the protected action ballot order was issued. Furthermore, the period specified in s.459(1)(d)(i) has not been previously extended.

On that basis and on the material before me, I am satisfied that each of the relevant requirements of s.459 of the Act have been met and that a 30 day extension is appropriate. As the 30 day period expires at midnight on 21 January 2022, the extension period will operate from 21 January 2022.

An order has been separately issued in PR737547.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the Transport Workers’ Union of Australia to extend the 30-day period for protected action authorised by a protected action ballot order issued on 10 December 2021. The application was made pursuant to s.459(3) of the Fair Work Act 2009. The ballot order, PR736673, applied to certain employees of Transdev NSW South Pty Ltd and Transdev NSW Pty Ltd. The result of the ballot, in which a majority of the relevant employees endorsed proposed forms of protected industrial action, was declared on 23 December 2021. The 30-day period for protected action, as specified in s.459(1)(d)(i) of the Act, started on the date of the ballot result declaration and was due to expire at midnight on 21 January 2022.

The primary legal issue the Commission had to determine was whether the 30-day period for protected action should be extended. This involved an examination of the provisions of s.459 of the Act, particularly s.459(3), and the requirements for such an extension. The Union argued that an extension was necessary, and the Respondent did not oppose the application. The Commission had to assess whether the Union met the criteria for an extension and whether the extension was appropriate given the circumstances.

The Commission found that all the relevant requirements under s.459 of the Act had been satisfied. Given that the 30-day period was set to expire on 21 January 2022, the Commission ruled that a 30-day extension was appropriate. The decision was made on the basis of the documentation filed and the absence of opposition from the Respondent. The extension would commence from 21 January 2022.

In conclusion, the Fair Work Commission granted the Transport Workers’ Union of Australia’s application for an extension of the 30-day period for protected action. The extended period would now run from 21 January 2022. An order has been issued in PR737547 to reflect this decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established