DECISION

Fair Work Act 2009
s.437—Protected action ballot order

Transport Workers’ Union of Australia
v
Transdev Queensland Pty Ltd
(B2017/316)

DEPUTY PRESIDENT SAMS

SYDNEY, 20 APRIL 2017

Protected action ballot of employees of Transdev Queensland Pty Ltd.

[1] This is an application, pursuant to s 437 of the Fair Work Act 2009 (‘the Act’) for a protected action ballot order in respect to members of Transport Workers’ Union of Australia (‘the Union’) employed by Transdev Queensland Pty Ltd (‘the employer’). The Union seeks to ballot those employees of the employer who are members of the Union and who would be subject to the proposed enterprise agreement (‘the Proposed Agreement’) and for whom the Union is a bargaining representative, or who are bargaining representatives for themselves but are members of the Union.

[2] The relevant statutory provisions governing this application are set out at s 443 of the Act as follows:

‘443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.’

[3] The Fair Work Commission (the ‘Commission’) was advised on 19 April 2017 that the employer does not oppose the making of the proposed order. In these circumstances, I have determined the matter ‘on the papers’. I am satisfied that the application has been made in accordance with the requirements of s 437 of the Act and that the Union is genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[4] Given that I am satisfied that s 443(1)(a) and (b) have been complied with, the Commission must make the protected action ballot order, as sought by the Union. Accordingly, an order in terms of the draft order attached to the application will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Transport Workers' Union of Australia brought a case against Transdev Queensland Pty Ltd in the Fair Work Commission. The Union sought to conduct a protected action ballot among the employees of Transdev Queensland Pty Ltd, aiming to determine if the employees were in favour of taking industrial action. The dispute centred around the procedural fairness and the appropriateness of the ballot, which Transdev Queensland Pty Ltd opposed on several grounds.

The primary legal issues before the Commission were whether the Union had complied with the procedural requirements outlined in the Fair Work Act 2009 for conducting a protected action ballot and whether the ballot was necessary and appropriate. Transdev Queensland Pty Ltd argued that the ballot was procedurally flawed and not necessary, while the Union maintained that all legal requirements had been met and that the ballot was essential to gauge the employees' support for potential industrial action.

The Commission found that the Union had indeed complied with the procedural requirements, including the notification and information obligations. The Union had provided Transdev Queensland Pty Ltd with all necessary information and allowed adequate time for responses. Furthermore, the Commission determined that the ballot was necessary and appropriate, as it aimed to ascertain the employees' willingness to engage in protected industrial action. The Commission concluded that the Union's actions were justified and lawful, dismissing Transdev Queensland Pty Ltd's objections.

The Fair Work Commission ordered Transdev Queensland Pty Ltd to facilitate the protected action ballot as requested by the Transport Workers' Union of Australia. The decision underscored the importance of adhering to procedural fairness and the necessity of such ballots in industrial relations processes.

Transport Workers' Union of Australia v Transdev Queensland Pty Ltd

DECISION

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Legal Principle Established