Fair Work Act 2009

s.437 - Application for a protected action ballot order

CDC Darwin Pty Ltd, CDC Regional NT Pty Ltd and Buslink NT Pty Ltd

Proposed protected action ballot of employees of CDC Darwin Pty Ltd, CDC Regional NT Pty Ltd and Buslink NT Pty Ltd

• [1] This is an application by the Transport Workers' Union of Australia (TWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of CDC Darwin Pty Ltd, CDC Regional NT Pty Ltd and Buslink NT Pty Ltd (CDC or Employers).

• [2] On being served the application, the Employers objected to the notice period being 3 working days for taking protected industrial action in respect of the proposed actions in ballot questions 1, 2 and 3. The Employers sought an extension to the notice period of 7 working days contending that there were exceptional circumstances justifying the extension. The Employers raised concerns in their written submissions regarding its capacity to notify the public of transport disruptions that give rise to public safety needs. In particular, CDC raised the geographically diverse and sparse locations their services cover, the significant reliance of the public (including school aged children) on the bus services operated by the Employers, and the complexity in notifying the travelling public of impacted routes. The Applicant contested the exceptional circumstances warranting an extension of the notice period. Nevertheless, on 19 August 2025, the parties advised the Commission that a consent position was reached reflecting an extended notice period of 5 working days in respect of the proposed industrial actions contemplated by questions 1, 2 and 3 of the ballot questions. On this basis the parties sought the hearing scheduled to determine the contested application be vacated and the matter determined on the papers.

• [3] Accordingly, taking into account the written submissions and the consent position, there are exceptional circumstances to justify a longer period of written notice than 3 days referred to in s.414(2)(a), with a period of 5 working days to be specified for the actions listed in question 1, 2 and 3 of the Ballot Questions in accordance with 443(5) and s.414(2)(b) of the Act.

• [4] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

• [5] On the basis of the material before me, including the declaration of William Cheffirs, Industrial Officer, setting out the steps taken by the TWU in bargaining with the Employers and that it has been, and is, genuinely trying to reach agreement with CDC, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

• [6] The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero Voting). Vero Voting has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

• [7] For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 2 September 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [8] An Order has been separately issued in PR790835.

• [9] This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

[1] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.

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