Australian Rail, Tram and Bus Industry Union v Aurizon Operations Limited and Aurizon Network Pty Ltd Summary

[2023] FWC 247

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Rail, Tram and Bus Industry Union
v

Aurizon Operations Limited and Aurizon Network Pty Ltd

(B2023/52)

VICE PRESIDENT CATANZARITI

SYDNEY, 27 JANUARY 2023

Proposed protected action ballot of employees of Aurizon Operations Limited and Aurizon Network Pty Ltd

This is an application by the Australian Rail, Tram and Bus Industry Union, Queensland Branch (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Aurizon Operations Limited and Aurizon Network Pty Ltd (Respondent).

On 25 January 2023, the Fair Work Commission was advised that the Respondent did not oppose the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Craig Allen of the Applicant declared on 23 January 2023, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An Order has been separately issued in PR750043.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Rail, Tram and Bus Industry Union, Queensland Branch, filed an application under section 437 of the Fair Work Act 2009 with the Fair Work Commission seeking a protected action ballot order for certain employees of Aurizon Operations Limited and Aurizon Network Pty Ltd. The application was made in the context of ongoing negotiations between the union and the respondents regarding an enterprise agreement. The respondents did not oppose the application, and as such, the matter was determined on the papers submitted, without the need for a hearing.

The central legal issue before the Commission was whether the union had met the statutory requirements to hold a protected action ballot, specifically under section 437 of the Act. The Commission needed to determine whether the union had genuinely attempted to reach an agreement with the respondents and if the notification period outlined in section 443(1) of the Act had been satisfied. The union's declaration, along with other evidence, was scrutinized to ascertain whether the statutory prerequisites for proceeding with the ballot were fulfilled.

The Fair Work Commission, Vice President Catanzariti, found that the union had indeed taken steps to bargain with the respondents and had been genuinely trying to reach an agreement. Based on the statutory declaration provided and other supporting documents, the Vice President was satisfied that the notification time in relation to the proposed agreement had been met, and that all requirements under section 443(1) of the Act were complied with. Consequently, the application for a protected action ballot order was granted.

An order was issued, allowing the union to proceed with the protected action ballot for the employees of Aurizon Operations Limited and Aurizon Network Pty Ltd, as per the details provided in the application. The decision underscores the importance of the legislative requirements in the Fair Work Act, ensuring that the union's right to organise and the employers' rights are balanced within the legal framework.

Australian Rail, Tram and Bus Industry Union v Aurizon Operations Limited and Aurizon Network Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established