Australian Federated Union of Locomotive Employees v Pacific National (QLD) Pty Ltd Summary

[2022] FWC 1391

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Federated Union of Locomotive Employees
v

Pacific National (QLD) Pty Ltd

(B2022/511)

VICE PRESIDENT CATANZARITI

SYDNEY, 2 JUNE 2022

Proposed protected action ballot of employees of Pacific National (QLD) Pty Ltd

This is an application by the Australian Federated Union of Locomotive Employees (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 Pacific National (QLD) Pty Ltd (Respondent).

On 1 June 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

On the basis of the material before me, including the statutory declaration of Michael John McKitrick of the Applicant declared on 31 May 2022, 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.

An Order has been separately issued in PR742262.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission received an application from the Australian Federated Union of Locomotive Employees (Applicant) for a protected action ballot order in relation to certain employees of Pacific National (QLD) Pty Ltd (Respondent). The application was made under section 437 of the Fair Work Act 2009 (Cth). The Respondent did not oppose the application and, as a result, the matter was decided on the papers without the need for a hearing. The Commission was satisfied that there was a notification time in relation to the proposed agreement and that the requirements of section 443(1) of the Act had been met.

The legal issues before the Commission were whether the notification time in relation to the proposed agreement had been met and whether the requirements of section 443(1) of the Act had been satisfied. The Commission considered the material before it, including a statutory declaration from Michael John McKitrick of the Applicant, which set out the steps taken by the Applicant in bargaining with the Respondent and confirmed that it had been, and was, genuinely trying to reach agreement with the Respondent.

The Commission found that the notification time had been met and that the requirements of section 443(1) of the Act had been satisfied. It was satisfied that the Applicant had taken all reasonable steps to reach an agreement with the Respondent and that the proposed protected action was in relation to a matter that could be the subject of protected action. The Commission also found that the ballot was necessary to enable the employees to take protected action in relation to the proposed agreement.

The Fair Work Commission ordered that a ballot of the relevant employees be conducted in accordance with the provisions of the Act. The Commission noted that an Order had been separately issued in PR742262. The decision was made under the authority of the Commonwealth Government Printer.

Australian Federated Union of Locomotive Employees v Pacific National (QLD) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established