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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1050871-1
COMMISSIONER LEE
B2014/1493
s.437 - Application for a protected action ballot order
Transport Workers' Union of Australia
and
Ventura Bus Lines Pty Ltd
(B2014/1493)
Melbourne
WEDNESDAY, 29 OCTOBER 2014
EXTRACT OF TRANSCRIPT OF PROCEEDINGS
EXTRACT OF TRANSCRIPT OF PROCEEDINGS [5.27PM]
PN1
THE COMMISSIONER: This is an application that has been made under Part 3-3, Division 8, subdivision B, section 437. It is an application for various protected action ballot orders covering the various operations of the Ventura Bus company. There has been evidence led today and submissions made in respect of this matter. There has also been a foreshadowing of an amendment to the application that has been made insofar as the questions that are to be put in the ballot and they have been articulated from the bar table.
PN2
As yet there has not been an opportunity for a finalised version of those questions to be put to me, but suffice to say that there has been sufficient clarity about the manner in which it is sought that the questions be amended. Based on the amendment to the questions the position of the respondent altered during the proceedings to one of no longer opposing the form of the questions put on the basis that they would be amended in the manner that was articulated by Mr Baarini for the TWU.
PN3
So having consideration of that, I am satisfied that the requirements of the Act in respect of all of the protected action ballot orders that are the subject of the proceedings today have met with the requirements of section 437 subsection (1) and that they have been made by a bargaining representative of the employees and that is not contested by the respondent. It is also not contested that requirements of section 438 subsection (1) are not triggered in that the applications for protected action ballot orders are not being made earlier than 30 days before the nominal expiry date of any of the enterprise agreements that cover the existing employees.
PN4
Evidence was given by Mr Lean that the notice of the application was given to the employer within 24 hours after making the application for the protected action ballot order and that the requirements of section 440 subsection (b), that is, the Australian Electoral Commission who will be the protected action ballot agent in this case was served with a copy of the proposed order within 24 hours, and further, in terms of section 443 subsection (1) so, accordingly, I am satisfied that applications have been made under section 437 that a valid applications.
PN5
In terms of section 443 subsection (1)(b) I am satisfied based on the submissions in evidence today that there has been and there is a genuine attempt to try and reach an agreement with the employer of the employees who are to be balloted on behalf of the applicant and that was not contested by the respondent. So the requirements of 443(1)(b) are met and so, accordingly, as 443 states, when the FWC must make a protected action ballot order, it follows that I must make a protected action ballot order as I am satisfied that all of those requirements have been met.
PN6
The remaining issue that was the subject of the proceedings today is that the respondent sought to establish that the Fair Work Commission be satisfied that in relation to the proposed industrial action that is the subject of the protected action ballot there are exceptional circumstances justifying the period of the written notice referred to in section 414(2)(a) have been longer than three working days and in particular have sought that the protected action ballot order specify a longer period of up to seven working days. That longer period of seven working days would relate to what would now be questions 3, 4 and 5 in the amended application.
PN7
They are the questions that ask whether those who are voting in the ballot agree to stoppages of work of four, 12 or 24 hours and it is only that issue on which a determination is required by me. Having given the matter some thought, I have determined that rather than keep myself and all the parties here until some time later this evening I am going to give a decision on that matter in transcript and I am going to do that at 9 am tomorrow morning so if the parties want to hear that decision, I will be giving it at that time. That concludes the proceedings for today. We are adjourned.
END OF EXTRACT [5.34PM]
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