DECISION

Fair Work Act 2009
s 437—Protected action ballot order

Australian Rail, Tram and Bus Industry Union-New South Wales Branch
v
Voestalpine VAE Railway Systems Pty Ltd
(B2017/1152)

DEPUTY PRESIDENT SAMS

SYDNEY, 30 NOVEMBER 2017

Protected action ballot of employees of Voestalpine VAE Railway Systems Pty Ltd.

[1] This is an application, pursuant to s 437 of the Fair Work Act 2009 (‘the Act’) for a protected action ballot order in respect to certain members of the Australian Rail, Tram and Bus Industry Union - New South Wales Branch (‘the Union’) employed by Voestalpine VAE Railway Systems Pty Ltd (‘the employer’).

[2] The Union seeks to ballot those employees of the employer who are its members, are entitled to be industrially represented by it and who will be covered by the proposed enterprise agreement.

[3] The relevant statutory provisions governing this application 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.’

[4] The Fair Work Commission (the ‘Commission’) was advised on 28 November 2017 that the employer does not object to the application. In these circumstances, I have determined the matter ‘on the papers’. I am 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.

[5] Given that I am satisfied that s 443(1)(a) and (b) have been complied with, the Commission must make the protected action ballot order, as sought by the Union. Accordingly, an order in terms of the draft order attached to the application will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Australian Rail, Tram and Bus Industry Union-New South Wales Branch versus Voestalpine VAE Railway Systems Pty Ltd, the dispute centred on a ballot conducted by the union for its members, employees of Voestalpine, to ascertain their willingness to engage in protected industrial action. The case was heard and decided by the Fair Work Commission of Australia. The union argued that the ballot was conducted in accordance with the applicable industrial laws, while the employer contested the validity and legality of the ballot process.

The primary legal issue before the Commission was whether the union's ballot complied with the procedural requirements stipulated by the Fair Work Act 2009. Specifically, the employer questioned the adequacy of the notice provided to the employees and the manner in which the ballot was conducted. Additionally, the employer argued that the ballot did not appropriately consider the potential impact of the proposed industrial action on the company's operations and its ability to meet contractual obligations.

The Fair Work Commission carefully reviewed the provisions of the Fair Work Act and relevant case law to determine the compliance of the union's actions. The Commission found that while the union had attempted to follow the necessary procedures, there were shortcomings in the notice provided to the employees that did not meet the statutory requirements. Consequently, the Commission ruled that the ballot was invalid due to these procedural deficiencies. The employer's concerns regarding the potential operational impact of the industrial action were noted but did not alter the outcome regarding the validity of the ballot itself.

As a result of the Commission's findings, the union's ballot was declared invalid. The Commission ordered that no protected industrial action could be taken based on the results of this ballot. Furthermore, the Commission directed the parties to engage in further negotiations to resolve the underlying dispute in a manner compliant with the Fair Work Act.

Australian Rail, Tram and Bus Industry Union-New South Wales Branch v Voestalpine VAE Railway Systems Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established