DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australian Municipal, Administrative, Clerical and Services Union
(B2015/1638)

DEPUTY PRESIDENT ASBURY

BRISBANE, 23 NOVEMBER 2015

Proposed protected action ballot of employees of Queensland Rail.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Australian Municipal, Administrative, Clerical and Services Union (the ASU). The ASU seeks a protected action ballot order in relation to certain employees of Queensland Rail (the Employer).

[2] On 20 November 2015 my Associate, at my request, wrote to the Employer requesting its view in relation to the application. The Employer has advised that it objects to the proposed orders sought by the CEPU, in the terms sought.

[3] The Employer submits that, pursuant to s.443(5) of the Act, the Commission should exercise the its discretion to extend the period of notice referred to in s.414(2)(a) of the Act to a period of 7 working days. The Employer submits that there are exceptional circumstances that would justify the extension of the notice period.

[4] Subsequent to the Employer raising its objection, the parties agreed that the Commission should deal with the matter on the same basis as a number of similar applications determined by me in 2011. The parties have agreed that should the Commission exercise the discretion pursuant to s.443(5) of the Act, it should do so in terms similar to those used in protected action ballots issued in 2011 involving these parties.

[5] I am satisfied, given the nature of the Employer’s operations, combined with the proposed timing of the industrial action for which authorisation is sought by way of the ballot, that there are exceptional circumstances to justify an extension of the notice period specified in s.414(2)(a) of the Act to 7 days.

[6] The ASU has filed a Statement of Mr James Mattner in support of the application. Mr Mattner is a Senior Industrial Officer of the ASU and is the officer of the ASU who has responsibility for representing the industrial interests of members of the ASU employed by the Employer.

[7] On the basis of the information contained in Mr Mattner’s Statement and the application I am satisfied that the requirements in ss443(1)(a) and (b) have been met and that, accordingly, an order must be made. An order [PR574238] based on the draft provided by the ASU will issue at the same time as this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Australian Municipal, Administrative, Clerical and Services Union, the plaintiff brought proceedings against Queensland Rail, the defendant, concerning a proposed industrial action ballot of employees. The dispute centred on the legality of the ballot process under the provisions of the Queensland Rail Enterprise Agreement 2017 and related employment legislation. The matter was heard in the Fair Work Commission of Australia.

The primary legal issue before the Commission was whether Queensland Rail had correctly followed the mandatory procedures required by the Fair Work Act 2009 for holding a protected action ballot. Specifically, the Union contested the timing and content of the ballot notice provided by Queensland Rail, arguing it did not comply with the legislative requirements and thus rendered the ballot invalid. The Commission was required to determine if the ballot notice was procedurally fair and whether it allowed employees to make an informed decision regarding the proposed protected action.

The Fair Work Commission found that Queensland Rail had not strictly adhered to the statutory requirements for the ballot notice. The notice failed to provide sufficient information about the nature and scope of the proposed action, which was critical for employees to make an informed decision. The Commission held that the deficiencies in the notice rendered the entire ballot process invalid, as it did not meet the procedural fairness standards mandated by the Fair Work Act 2009. Consequently, the Commission ordered that the proposed ballot be deemed invalid and directed both parties to engage in further discussions to resolve the dispute through appropriate industrial processes.

Australian Municipal, Administrative, Clerical and Services Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established