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

[2022] FWC 98

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Federated Union of Locomotive Employees
v

Pacific National (Queensland Coal) Pty Ltd

(B2022/12)

VICE PRESIDENT CATANZARITI

SYDNEY, 20 JANUARY 2022

Proposed protected action ballot of employees of Pacific National (Queensland Coal) 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 (Queensland Coal) Pty Ltd (Respondent).

On 14 January 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 Mckitrick of the Applicant declared on 13 January 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 PR737626.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Federated Union of Locomotive Employees applied for a protected action ballot order in relation to certain employees of Pacific National (Queensland Coal) Pty Ltd. The Applicant sought to conduct a ballot of its members to determine whether they would take protected industrial action in response to the Respondent's failure to reach an agreement with the Applicant. The Respondent did not oppose the application. The Vice President of the Fair Work Commission was required to determine whether the statutory requirements for a protected action ballot order under section 437 of the Fair Work Act 2009 (Cth) had been satisfied.

The Vice President found that the requirements for a protected action ballot order had been met. The Applicant had provided evidence of its attempts to reach an agreement with the Respondent, including a statutory declaration from Michael Mckitrick, an officer of the Applicant. The Vice President was satisfied that the Applicant had genuinely attempted to reach an agreement with the Respondent and that the notification time for the proposed agreement had elapsed. Therefore, the Vice President determined that the statutory requirements for a protected action ballot order had been satisfied.

The Vice President issued an Order in PR737626, granting the Applicant's application for a protected action ballot order. The order permitted the Applicant to conduct a ballot of its members to determine whether they would take protected industrial action. The Vice President did not hold a hearing in this matter, as the Respondent did not oppose the application and the matter was determined on the papers.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established