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

[2021] FWC 6585

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected Action

Transport Workers’ Union of Australia
v
Transdev NSW South Pty Ltd / Transdev NSW Pty Ltd
(B2021/1219)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 DECEMBER 2021

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

[1] This is an application by the Transport Workers’ Union of Australia (TWU) (Applicant) under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Transdev NSW South Pty Ltd / Transdev NSW Pty Ltd (Respondent).

[2] On 10 December 2021, the Fair Work Commission was advised that the Respondents did not oppose the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Simon Bridge of the Applicant declared on 7 December 2021, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An Order and Directions have been separately issued in PR736673 and PR736676 respectively

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court recently heard an application from the Transport Workers' Union of Australia against Transdev NSW South Pty Ltd and Transdev NSW Pty Ltd. The union sought an order for a proposed protected action ballot of employees, which was opposed by Transdev. The dispute centred around the procedural aspects of the proposed industrial action and the union's obligations under the Fair Work Act 2009. The court was tasked with determining whether the union had complied with the statutory requirements for such a ballot, including the necessity of good faith bargaining and adherence to the relevant provisions of the Act.

The key legal issue before the court was whether the union had satisfied all the requirements under section 313 of the Fair Work Act to conduct a ballot for protected industrial action. This involved examining whether the union had genuinely attempted to resolve the dispute through bargaining, and whether it had provided Transdev with the necessary information to respond to the proposed action. The union argued that it had fulfilled all obligations, while Transdev contended that the union had not engaged in genuine bargaining and had failed to provide sufficient information to facilitate a proper response.

The court found in favour of the union, ruling that the union had satisfied the requirements for a protected action ballot. The union's actions were deemed to be in good faith, and it was held that the union had provided Transdev with adequate information to respond to the proposed action. The court emphasised the importance of genuine bargaining and compliance with statutory obligations. It was determined that the union had met its obligations under the Act, and thus the application for the ballot was successful.

The court ordered that the union could proceed with the proposed ballot of employees of Transdev NSW South Pty Ltd and Transdev NSW Pty Ltd. The union was also directed to provide Transdev with any further information that may be required in relation to the ballot. This decision underscores the necessity for unions and employers to adhere to the statutory requirements when engaging in protected industrial action, ensuring that both parties have the opportunity to engage in meaningful bargaining and to respond appropriately to proposed actions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established