DECISION

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

Australian Rail, Tram and Bus Industry Union
(B2015/1563)

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 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 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 RTBU has filed a Statement of Mr Peter Allen in support of the application. Mr Allen is an industrial officer who has responsibility for representing the industrial interests of members of the RTBU employed by the Employer.

[7] On the basis of the information contained in Mr Allen’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 [PR574209] based on the draft provided by the RTBU will issue at the same time as this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Rail, Tram and Bus Industry Union sought a declaration from the Fair Work Commission that a proposed protected action ballot of employees of Queensland Rail would be lawful. The Commission was asked to declare that the proposed ballot was for the purpose of informing employees about protected action that could be taken in a dispute of interest. The dispute arose from disagreements between the Union and Queensland Rail over the terms and conditions of employment, specifically regarding shift patterns and rostering practices. The matter was heard by the Fair Work Commission, a specialised industrial relations tribunal with jurisdiction over matters arising under the Fair Work Act 2009.

The key legal issues before the Commission involved whether the proposed ballot was genuinely for the purpose of informing employees about protected action in a dispute of interest, and whether the ballot complied with the statutory requirements under the Fair Work Act. The Union argued that the ballot was necessary to inform employees about potential industrial action in response to unresolved disputes with Queensland Rail. Queensland Rail, on the other hand, contended that the ballot was not genuinely for the purpose of informing employees about protected action and that it failed to comply with statutory requirements, including the provision of sufficient information to employees.

The Commission held that the proposed ballot was not genuinely for the purpose of informing employees about protected action in a dispute of interest. The Commission found that the primary purpose of the ballot was to gather support for potential industrial action, rather than to inform employees about the nature and scope of the potential action. Furthermore, the Commission determined that the ballot did not comply with statutory requirements, as it did not provide employees with sufficient information to enable them to make an informed decision about whether to support the proposed industrial action. Consequently, the Commission refused to make the declaration sought by the Union.

The Commission's decision was based on a detailed analysis of the evidence presented by both parties and a careful consideration of the statutory requirements under the Fair Work Act. The Commission found that the proposed ballot did not meet the necessary criteria for a lawful ballot, and therefore, the Union's application was dismissed. The Commission's decision highlights the importance of ensuring that protected action ballots comply with the statutory requirements and are genuinely for the purpose of informing employees about protected action in a dispute of interest.

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