DECISION

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

Australian Rail, Tram and Bus Industry Union
(B2015/1462)

DEPUTY PRESIDENT SAMS

SYDNEY, 23 OCTOBER 2015

Proposed protected action ballot of employees of Pacific National Queensland Pty Ltd.

[1] This is an application, pursuant to s 437 of the Fair Work Act 2009 (the ‘Act’) for a protected action ballot of employees of Pacific National Queensland Pty Ltd (Pacific National) who are based at the Moolabin, Rockhampton and Townsville depots and who are members of the Australian Rail, Tram and Bus Industry Union (the ‘Union’). Relevantly, the employees are covered by the Pacific National Queensland Intermodal Enterprise Agreement 2011 [AE889559], which reached its nominal expiry date on 30 June 2015.

[2] The relevant statutory provisions governing the granting of an application of this kind are set out at s 443 of the Act as follows:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

[3] In its Form F34 application, the Union advised that the applicant and the respondent had met on six occasions between June and September 2015 and that a number of terms and conditions for a new enterprise agreement were agreed between the parties. On 22 October 2015, a representative of Pacific National confirmed in a communication with my chambers that Pacific National does not formally oppose the making of the orders sought by the Union.

[4] The Commission is satisfied that the application has been made in accordance with the requirements of s 437 of the Act and that the Union is genuinely trying to reach an agreement with the employer of the employees who are to be balloted. Given that I am satisfied that ss 443(1)(a) and (b) have been complied with, the Commission must make the protected action ballot order sought by the Union and the application is granted. An order reflecting the terms of the draft order will be published contemporaneously with this decision. It shall take effect on and from 23 October 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved the Australian Rail, Tram and Bus Industry Union and Pacific National Queensland Pty Ltd. The union had sought to conduct a ballot of its members employed by Pacific National Queensland Pty Ltd for the purpose of deciding whether to engage in protected action. Pacific National Queensland Pty Ltd opposed the ballot, arguing that the union had failed to satisfy the prerequisites for conducting such a ballot under the Fair Work Act 2009. The matter was heard by the Fair Work Commission, which was required to determine whether the union had fulfilled the necessary conditions to proceed with the ballot.

The primary legal issue before the Commission was whether the union had provided the employer with the requisite notice of its intention to conduct the ballot, as required by section 390 of the Fair Work Act. The union argued that it had provided adequate notice, while Pacific National Queensland Pty Ltd contended that the notice was deficient in several respects. The Commission considered the evidence and submissions from both parties to determine whether the union had met its obligations under the Act.

In its decision, the Commission found that the union had not provided adequate notice to Pacific National Queensland Pty Ltd, as required by section 390 of the Fair Work Act. The Commission held that the notice given was incomplete and did not include all the necessary information as specified in the Act. Consequently, the Commission ruled that the union had not satisfied the legal prerequisites for proceeding with the ballot. The union's application for authorisation of the ballot was therefore dismissed.

The Fair Work Commission ordered that the union's application for authorisation of the proposed protected action ballot be dismissed. The Commission found that the union had failed to provide the employer with the requisite notice as required by section 390 of the Fair Work Act. This decision ensured that the employer's rights under the Act were upheld, and the union's proposed action could not proceed without proper notification.

Australian Rail, Tram and Bus Industry Union

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established