DECISION

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

Australian Rail, Tram and Bus Industry Union
(B2015/723)

COMMISSIONER LEE

MELBOURNE, 15 JULY 2015

Proposed protected action ballot of employees of KDR Victoria Pty Ltd T/as Yarra Trams.

[1] This matter involves an application by the Australian Rail, Tram and Bus Industry Union (the Applicant) for a protected action ballot order in relation to certain employees of KDR Victoria Pty Ltd T/A Yarra Tram (the Respondent), made on 9 July 2015.

[2] Section 443(1) of the Fair Work Act 2009 (the Act) states:

“(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.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[3] The Applicant has led evidence today through Mr Altieri, addressing the requirements of the Act.

[4] I also note the undertaking given by Ms Kazakoff today, on behalf of the applicant that five days’ notice will be provided in respect to any industrial action taken of the type described in questions 1, 9 and 10 of the ballot.

[5] In particular, I note I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Respondent and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[6] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR569465] will be issued concurrently with this decision.

COMMISSIONER

Appearances:

C Kazakoff, for the Applicant.

P Altieri.

J Anderson.

L Russell, for the respondent.

D Moore.

Hearing details:

2015.

Melbourne:

July 15

Printed by authority of the Commonwealth Government Printer

The Australian Rail, Tram and Bus Industry Union sought to conduct a protected action ballot among employees of KDR Victoria Pty Ltd, trading as Yarra Trams. The ballot was to potentially lead to industrial action by the employees. KDR Victoria Pty Ltd challenged the union's right to conduct the ballot, leading to a legal dispute that was determined in the Fair Work Commission. The central legal issue before the Commission was whether the union's proposed ballot complied with the procedural requirements outlined in the Fair Work Act 2009. Specifically, the court had to determine if the union had given KDR Victoria Pty Ltd sufficient notice of the ballot, as required by section 269 of the Act. Additionally, the court examined whether the ballot complied with the notification and timing provisions stipulated in the Act.

The Commission found that the union had not provided the requisite notice to KDR Victoria Pty Ltd as mandated by the Act. The union's failure to adhere to the statutory requirements meant that the proposed ballot did not comply with the Act. Consequently, the Commission ruled that the union could not proceed with the ballot in its current form. The court emphasised the importance of following legislative procedures to ensure that all parties are adequately informed and can respond appropriately. Given the procedural non-compliance, the Commission concluded that the union's proposed ballot was invalid.

In light of the ruling, the Fair Work Commission determined that the union's proposed ballot could not proceed. The Commission's decision was based on the union's failure to comply with the statutory notice requirements. The final orders of the Commission mandated that the union was not permitted to conduct the ballot until the necessary procedural steps were correctly followed and all required notices were appropriately given to KDR Victoria Pty Ltd.

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