Transport Workers' Union of Australia v Transdev Queensland Pty Ltd T/A Transdev Queensland Pty Ltd Summary

[2023] FWC 3275

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Transdev Queensland Pty Ltd T/A Transdev Queensland Pty Ltd

(B2023/1342)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 7 DECEMBER 2023

Proposed protected action ballot of employees of Transdev Queensland Pty Ltd Trading As Transdev Queensland Pty Ltd

This is an application by the Transport Workers’ Union of Australia (TWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Transdev Queensland Pty Ltd T/A Transdev Queensland Pty Ltd (Transdev or Employer).

On 7 December 2023, the Commission was advised that Trandev did not, in effect, object to the Application as amended.[1]

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

On the basis of the material before me, including the declaration of Mr James Wilkinson, Organiser, TWU, setting out the steps taken by the TWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Transdev, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[2] and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 21 December 2023.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking the nominated forms of industrial action set out in clause 15 of the Order made by the Commission. The default period of three working days will apply to the remaining forms of action arising from the other ballot questions.

An Order has been separately issued in PR769134.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] The parties confirmed via email correspondence on 7 December 2023 that by consent, an extended notice period under s.414(2)(b) would apply in connection with certain ballot questions.

[2] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[3] This is the date specified in the proposed order and is, in effect, seven (7) working days from the expected commencement of the ballot period and ten (10) working days from the making of the Order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has dealt with an application by the Transport Workers’ Union of Australia seeking a protected action ballot order against Transdev Queensland Pty Ltd. The Commission was informed that Transdev did not object to the application, leading to a decision on the papers without a hearing. The applicant, the Transport Workers’ Union, aimed to conduct a ballot for certain employees to determine their support for proposed industrial action. The Commission determined that the applicant had fulfilled the requirements of section 443(1) of the Fair Work Act 2009, including demonstrating genuine efforts in bargaining with the employer. The ballot would be conducted by an approved agent, Democratic Outcomes Pty Ltd T/A CiVS, with the voting period closing on 21 December 2023.

The legal issues before the Commission included whether the requirements for a protected action ballot were met, and if an extended notice period was justified under exceptional circumstances for certain forms of industrial action. The Commission found that the Union had indeed satisfied the statutory requirements for the ballot and that exceptional circumstances warranted an extended notice period for some forms of industrial action. The default notice period of three working days applied to the other forms of action. The Commission also assigned the matter to another member to conduct a compulsory conciliation conference to facilitate meaningful negotiations between the parties.

The Deputy President concluded that the application should be granted, allowing the Union to proceed with the ballot. An order was made specifying the closing date for voting and the extended notice period for certain industrial actions. The Commission further mandated a compulsory conciliation conference to be attended by all bargaining representatives to ensure productive negotiations. This decision underscores the Commission's role in balancing the rights of employees to organise and take industrial action with the need to provide employers with sufficient notice to prepare and respond effectively.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established