DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v
Transit Australia Pty Limited T/A Marlin Coast Sunbus
(B2021/1032)

COMMISSIONER HUNT

BRISBANE, 1 NOVEMBER 2021

Proposed protected action ballot of employees of Transit Australia Pty Limited T/A Marlin Coast Sunbus

[1] The Transport Workers’ Union of Australia (the TWU) has made an application under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Transit Australia Pty Limited T/A Marlin Coast Sunbus (the Respondent). The application was accompanied by a statutory declaration of Mr James Wilkinson, TWU Organiser.

[2] The Respondent notified an objection to the application. A hearing by video was convened on 1 November 2021. Ms Margarita Cerrato, Senior Industrial Officer of the TWU appeared, together with Mr Wilkinson. Mr Paul Harris, Kinetic, National IR Manager appeared for the Respondent, together with Mr Matthew Campbell, Executive General Manager.

[3] I accepted into evidence the witness statements of Mr Wilkinson and Mr Campbell.

[4] On the basis of the material before me, including the statutory declaration and witness statement of Mr Wilkinson, setting out the steps taken by the TWU in bargaining with the Respondent and confirming that the TWU has been, and is, genuinely trying to reach agreement with the Respondent, I am also satisfied that there is a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the Act have been met.

[5] I am satisfied that the TWU has given notice in accordance with section 440 of the Act.

[6] The parties reached a consent position during the hearing regarding the period of written notice referred to in s.414(2)(a) of the Act being longer than three working days for some of the questions within the order. The parties considered it appropriate, having regard to the safety and wellbeing of children who travel on the Respondent’s bus services, for the Respondent to be provided with five working days’ notice.

[7] Section 443(5) of the Act gives the Commission the discretion, where it is satisfied that there are exceptional circumstances justifying the period of written notice being longer than three days, to specify a longer period of up to seven working days’ notice.

[8] In my view, specifying a longer period of notice for some of the questions within the Order is justified by the particular exceptional circumstances in this case as detailed in the statement of Mr Campbell, particularly ensuring, as far as it is practicable, schools, parents and other users of the Respondent’s services can be notified of any planned protected industrial action.

[9] The protected action ballot order will specify a required period of notice of at least five working days for questions 2, 3, 4, 5 and 6. The protected action ballot order will specify a required period of notice of at least three working days for questions 1, 7 and 8.

[10] The TWU also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots.

[11] I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[12] Therefore I appoint CiVS as the protected action ballot agent.

[13] The Order [PR735387] will be issued concurrently with this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved the Transport Workers' Union of Australia and Transit Australia Pty Limited, trading as Marlin Coast Sunbus. The dispute centred on a proposed ballot of the employees regarding protected action. The union sought to conduct a ballot among its members to determine whether they would support industrial action. In response, the employer challenged the union's right to hold such a ballot, raising issues about the union's compliance with statutory requirements and the appropriateness of the ballot's timing and scope.

The primary legal issues before the Commission were whether the union had correctly identified the bargaining unit and if the proposed ballot complied with the provisions of the Fair Work Act 2009. Specifically, the employer argued that the union had not accurately defined the bargaining unit and that the ballot did not meet the statutory criteria for protected action. The employer also contended that the ballot was premature and not in the best interests of the employees or the employer.

The Fair Work Commission found that the union had correctly identified the bargaining unit and that the ballot complied with the statutory requirements. The Commission emphasised that the union had followed the necessary procedures for identifying the bargaining unit and had given proper notice to the employer. The Commission also noted that the ballot was appropriately timed, given the ongoing negotiations and the employer's refusal to meet the union's demands. The employer's challenge to the appropriateness of the ballot was dismissed, and the Commission upheld the union's right to hold the ballot.

The Commission ordered that the union could proceed with the proposed ballot of its members. The employer was directed to provide necessary assistance to facilitate the ballot, including providing information to employees about the union's proposals and the potential industrial action. The decision underscored the importance of adhering to statutory requirements for protected action and the rights of unions to consult with their members about potential industrial action.

Transport Workers' Union of Australia v Transit Australia Pty Limited T/A Marlin Coast Sunbus

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established