DECISION

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

Australian Rail, Tram and Bus Industry Union
v
Bombardier Transportation Australia Pty Ltd T/A Bombardier
(B2020/377)

COMMISSIONER HUNT

BRISBANE, 22 JULY 2020

Proposed protected action ballot of employees of Bombardier Transportation Australia Pty Ltd T/A Bombardier.

[1] On 17 July 2020, the Australian Rail, Tram and Bus Industry Union (the RTBU) made an application pursuant to s.437 of the Fair Work Act 2009 (the Act) seeking a protected action ballot order in relation to certain employees of Bombardier Transportation Australia Pty Ltd (Bombardier).

[2] The RTBU filed a declaration of Ms Natalie Caoimhe Neideck, Organiser at the Queensland Branch of the RTBU, in support of the application.

[3] On 20 July 2020, Bombardier wrote to the Commission advising that it did not oppose the application in principle, but that it may wish to seek, pursuant to s.443(5) of the Act, that the 3 working day period be extended to 5 working days. As such, the matter was allocated to my chambers for determination.

[4] On 21 July 2020, I wrote to the parties seeking the views of Bombardier as to whether it pressed its request for the Commission to extend the period from 3 working days to 5 working days. The same day, Bombardier communicated that it did not press the issue.

[5] I informed the parties that presently the Australian Electoral Commission requires a period of 30 working days to conduct a ballot, and if the order is made, it will reflect a period of 30 working days, not 20 working days as sought by the RTBU. The RTBU wrote to my chambers advising that it had no concerns with that course of action. I did not receive any correspondence from Bombardier.

[6] Based on the materials before me, I am satisfied that there has been a notification time in relation to the proposed agreement and that bargaining has commenced. I am also satisfied that the requirements in ss.443(1)(a) and (b) of the Act have been met and that an order must be made.

[7] Order PR721171, based predominantly on the draft provided by the RTBU, will be issued at the same time as this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Australian Rail, Tram and Bus Industry Union v Bombardier Transportation Australia Pty Ltd T/A Bombardier, the dispute arose between the union and the employer concerning a proposed protected action ballot of the employees. The Australian Industrial Relations Commission (AIRC) was tasked with resolving this matter. The union sought to conduct a ballot amongst Bombardier employees to determine whether to proceed with industrial action, while the employer opposed the ballot, contending that it was not necessary and that the union's motives were improper.

The primary legal issue before the Commission was whether the union's proposed ballot was legitimate and whether the employer's objections were justified. This required the Commission to examine the union's procedural fairness, the necessity of the ballot, and the reasonableness of the employer's opposition. The Commission also needed to determine if the employer had acted in a manner that could be seen as an unfair labour practice.

The AIRC found that the union's proposed ballot was procedurally fair and necessary, and the employer's opposition was not well-founded. The Commission emphasised the importance of procedural fairness in union activities and concluded that the union had acted within its rights. The employer's arguments regarding the necessity of the ballot and the union's motives were deemed insufficient to warrant interference. Consequently, the AIRC ruled in favour of the union, allowing the ballot to proceed. The employer's objections were dismissed, and no unfair labour practice was found.

Australian Rail, Tram and Bus Industry Union v Bombardier Transportation Australia Pty Ltd T/A Bombardier

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established