Australian Municipal, Administrative, Clerical and Services Union v Aurizon Operations Limited and Aurizon Network Pty Ltd

[2023] FWC 242

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v

Aurizon Operations Limited and Aurizon Network Pty Ltd

(B2023/50)

VICE PRESIDENT CATANZARITI

SYDNEY, 27 JANUARY 2023

Proposed protected action ballot of employees of Aurizon Operations Limited and Aurizon Network Pty Ltd

This is an application by the Australian Municipal, Administrative, Clerical and Services Union (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 Aurizon Operations Limited and Aurizon Network Pty Ltd (Respondent).

On 25 January 2023, 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 Christopher McJannett of the Applicant declared on 20 January 2023, 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 PR750026.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application from the Australian Municipal, Administrative, Clerical and Services Union (the Applicant) under section 437 of the Fair Work Act 2009 (Cth) for a protected action ballot order in relation to certain employees of Aurizon Operations Limited and Aurizon Network Pty Ltd (the Respondent). The application was made as the Applicant sought to hold a ballot to determine whether its members would take industrial action. The Respondent did not oppose the application, and the matter was determined on the papers without a hearing.

The primary legal issue the Commission was required to decide was whether the conditions for a protected action ballot were met under section 437 of the Fair Work Act. This required the Commission to consider whether there was a notification time in relation to the proposed agreement and whether the requirements of section 443(1) of the Act had been satisfied. The latter required the Commission to assess the evidence provided by the Applicant to determine if it had been genuinely trying to reach an agreement with the Respondent.

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 evidence provided by the Applicant demonstrated that it had been genuinely trying to reach an agreement with the Respondent, and the Commission was satisfied that the conditions for a protected action ballot were met. As a result, the Commission decided to grant the application and issued an Order permitting the Applicant to hold a ballot to determine whether its members would take industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established