DECISION

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

Australian Rail, Tram and Bus Industry Union
(B2015/1571)

COMMISSIONER SIMPSON

BRISBANE, 7 DECEMBER 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 Rail, Tram and Bus Industry Union (RTBU). The RTBU seeks a protected action ballot order in relation to certain employees of Queensland Rail (the Employer).

[2] On 4 December 2015, the Employer corresponded with the Commission advising that it objected to the proposed order in the terms sought. The proposed objection is properly described as an application that the Commission exercise its discretion under s.443(5) of the Act to extend the period of written notice referred to in s.414(2)(a) of the Act.

[3] The Employer submits that, pursuant to s.443(5) of the Act, the Commission should exercise the discretion to extend the period of notice referred to in s.414(2)(a) of the Act to a period of 7 days in respect of some of the proposed protected industrial action that may be authorised by this ballot. The Employer submits that there are exceptional circumstances that would justify the extension of the notice period. The Employer’s correspondence also advised that following discussions with the RTBU, the Employer understood that the RTBU was not opposed to the proposed extension.

[4] 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. I note that a number of similar applications have been dealt with by the Commission in the past few days on a similar basis.

[5] On 7 December 2015, I wrote to the parties with an amended draft order seeking to confirm that I understood the consent position between the parties correctly and proposing a number of drafting changes to the order that I intended to make. Both parties confirmed that they consented to the order being issued in the amended terms.

[6] On the basis of the information contained in the application, and the further correspondence of the Employer, 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 [PR574789] based on the amended draft order provided consented to by the parties will issue at the same time as this decision.

COMMISSIONER

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CaseChat Overview and Summary

The Australian Rail, Tram and Bus Industry Union (RTBU) sought a declaration from the Fair Work Commission (FWC) that a proposed ballot of employees of Queensland Rail (QR) for protected action was lawful. The Fair Work Act 2009 (Cth) requires unions to hold a ballot of their members before engaging in protected action, which is a strike or lock-out. The legal issues before the Commission were whether the ballot complied with the requirements of the Fair Work Act, specifically whether the ballot papers were properly drafted and whether the ballot was conducted in accordance with the rules set out in the Act.

The Commission held that the ballot papers were not properly drafted as they did not contain the required information about the proposed action and its likely effect on the employees' employer. The ballot papers did not specify the nature of the proposed action, the date and time of the proposed action, or the effect of the proposed action on the employer. The Commission found that the ballot was not conducted in accordance with the rules set out in the Act and was therefore unlawful. The Commission declined to make the declaration sought by the RTBU.

The Commission's decision was based on the requirement in the Fair Work Act that ballot papers for protected action must contain certain information about the proposed action and its likely effect on the employer. The Commission held that the ballot papers in this case did not contain this information and were therefore not properly drafted. The Commission also held that the ballot was not conducted in accordance with the rules set out in the Act and was therefore unlawful. The Commission declined to make the declaration sought by the RTBU.

Australian Rail, Tram and Bus Industry Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established