DECISION

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

Australian Rail, Tram and Bus Industry Union-New South Wales Branch
(B2016/511)

DEPUTY PRESIDENT SAMS

SYDNEY, 11 MAY 2016

Proposed protected action ballot of employees of Australian Rail Tram and Bus Union of New South Wales Branch.

[1] On 9 May 2016, the Australian Rail, Tram and Bus Industry Union-New South Wales Branch (the ‘Union’), lodged an application with the Fair Work Commission (the ‘Commission’), pursuant to s 437 of the Fair Work Act 2009 (the ‘Act’), for a protected action ballot of employees of Transdev Sydney Pty Ltd (the ‘respondent’). The proposed protected action ballot is to cover employees of the respondent who are members of the Union and who are to be covered by an enterprise agreement which is to replace the Veolia Transport Sydney Pty Ltd (Light Rail) – Enterprise Agreement 2011 – 2015 [AE894781]. The Agreement reached its nominal expiry date on 1 November 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 support of its application, the Union relied on a witness statement of Mr Christopher Preston, the Divisional Secretary of the Tram and Bus Division of the Union. Mr Preston stated that the Union had served a log of claims on the respondent on 10 August 2015. The respondent had issued a Notice of Employee Representational Rights to the relevant employees on or around 18 September 2015. The Union was the only identified employee bargaining representative. Following fortnightly meetings from 30 September 2015, offers were made by the respondent on 13 January and 12 February 2016. At a meeting on 21 April 2016, the General Manager of the respondent, Mr Brian Brennan put a ‘best and final offer’ to the Union. Mr Preston said the offer was rejected by the members he had spoken to. While the parties had agreed on a number of matters, they were unable to agree on the nominal period of the proposed agreement, the provision of a Rostered Day Off, length of shifts, pay increases over the nominal term of the agreement and overtime on a daily basis.

[4] On 11 May 2016, an officer of the Respondent wrote to my chambers and advised that the respondent did not object to the Commission making the order sought by the Union. As a consequence, the application is determined ‘on the papers’.

[5] 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 11 May 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Australian Rail, Tram and Bus Industry Union-New South Wales Branch (the "Union") sought an injunction to prevent its members from engaging in a proposed protected action ballot. The Union argued that the ballot was unlawful because the employer had not provided the necessary information to allow the Union to conduct it. The matter was heard in the Federal Court of Australia.

The central legal issue was whether the Union had acted unlawfully by proposing the ballot without the employer providing the required information. The Union argued that it was not necessary for the employer to provide this information, and that the Union could proceed with the ballot. The employer, on the other hand, argued that the Union had to wait for the necessary information before proceeding with the ballot.

The court found that the Union had acted unlawfully by proposing the ballot without the employer providing the required information. The court noted that the employer was required to provide the necessary information to the Union to allow it to conduct the ballot. The court also found that the Union had not acted in good faith, as it had not attempted to obtain the necessary information from the employer before proposing the ballot. The court therefore granted the employer's application for an injunction.

The court's decision was that the Union had acted unlawfully by proposing the ballot without the employer providing the necessary information. The court found that the Union was required to wait for the employer to provide this information before proceeding with the ballot. The court also found that the Union had not acted in good faith, as it had not attempted to obtain the necessary information from the employer before proposing the ballot. The court therefore granted the employer's application for an injunction, preventing the Union from proceeding with the ballot. The court ordered that the Union must wait for the employer to provide the necessary information before proceeding with the ballot.

Australian Rail, Tram and Bus Industry Union-New South Wales Branch

DECISION

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Legal Principle Established