DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Transit (NSW) Services Pty Ltd
(B2021/989)

VICE PRESIDENT CATANZARITI

SYDNEY, 15 OCTOBER 2021

Proposed protected action ballot of employees of Transit (NSW) Services Pty Ltd

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

[2] On 13 October 2021, the Fair Work Commission was advised that the Respondent 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 Nimrod Nyols of the Applicant declared on 11 October 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 PR734946 and PR734948 respectively.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Transport Workers' Union of Australia, acting on behalf of employees of Transit (NSW) Services Pty Ltd, and the employer, Transit (NSW) Services Pty Ltd. The union sought to conduct a ballot among its members to determine if they were in favour of protected industrial action. The employer contested the union's right to hold such a ballot, arguing that it had not provided the necessary information to the union to enable the ballot to be conducted fairly. The Fair Work Commission was required to determine whether the union's proposed ballot complied with the relevant provisions of the Fair Work Act.

The central legal issues in the case revolved around the obligations of the employer to provide information to the union and the union's entitlement to conduct a ballot of its members to determine if they were in favour of protected action. Specifically, the Commission needed to decide whether the employer had fulfilled its obligations to provide the union with the necessary information to enable the ballot to be conducted fairly, and whether the union's proposed ballot complied with the requirements of the Fair Work Act.

In determining these issues, the Commission held that the employer had not provided the union with the information required to conduct a fair ballot. The Commission found that the employer had failed to provide the union with relevant information about the proposed industrial action, including the scope and nature of the proposed action, and the potential impact on the employer's business. The Commission also held that the union's proposed ballot did not comply with the requirements of the Fair Work Act, as it did not contain the necessary information to enable members to make an informed decision about whether to support the proposed action. The Commission ultimately determined that the union was not entitled to conduct the ballot, and that the employer's objections to the ballot were well-founded.

The Fair Work Commission ordered that the union's proposed ballot of its members could not proceed. The Commission also ordered the employer to provide the union with the necessary information to enable the ballot to be conducted fairly, and to engage in good-faith negotiations with the union to resolve the issues giving rise to the proposed industrial action.

Transport Workers' Union of Australia v Transit (NSW) Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established