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

[2023] FWC 1829

[2023] FWC 1829

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Transit Australia Pty Limited T/A Sunbus Sunshine Coast

(B2023/735)

COMMISSIONER HUNT BRISBANE, 25 JULY 2023

Proposed protected action ballot of employees of Transit Australia Pty Limited Trading As Sunbus Sunshine Coast

1. The Transport Workers’ Union of Australia (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 Sunbus Sunshine Coast (the Respondent).

1. The Respondent notified an objection to the application in respect to the notification time for questions 1 to 6, inclusive. Accordingly, a hearing by video was arranged for 26 July 2023. However, on 25 July 2023, the Respondent wrote to my chambers advising that the parties have reached agreement in respect to the objection, as discussed below. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the statutory declaration 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.

1. I am satisfied that the TWU has given noticed in accordance with section 440 of the Act.

1. The parties reached a consent position during private discussions regarding the period of written notice referred to in s.414(2)(a) of the Act being longer than three working days for certain questions within the order. The parties considered it appropriate, having regard to the nature of the industry that the Respondent operates in, for the Respondent to be provided with five working days’ notice for questions 1 to 6, inclusive.

1. 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.

1. 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 Respondent’s response, particularly ensuring that appropriate contingency arrangements are put in place and to ensure that users of the Respondent’s services can be notified of any planned protected industrial action.

1. The protected action ballot order will specify a required period of notice of at least five working days for questions 1, 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 7, 8 and 9.

1. The ballot is to be conducted by the Democratic Pty Ltd T/A CiVS (CiVS). CiVS has recently been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.[1] The scheme of the Act is now that where named in the PABO application and proposed orders, the Commission will, subject to the Act, be obliged to, in effect, appoint that eligible protected action ballot agent to conduct the ballot concerns.

1. The Order [PR764561] will be issued concurrently with this Decision.

1. This matter will be listed for a s.448A conference. An Order and Direction will be issued shortly requiring attendance at the conference.

COMMISSIONER

[1] See Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.

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