DECISION

Fair Work Act 2009
s.437—Protected action

Australian Rail, Tram and Bus Industry Union
v
EDI Rail PPP Maintenance Pty Ltd
(B2019/1324)

VICE PRESIDENT CATANZARITI

SYDNEY, 20 NOVEMBER 2019

Proposed protected action ballot of employees of EDI Rail PPP Maintenance Pty Ltd.

[1] This is an application by the Australian Rail, Tram and Bus Industry Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of EDI Rail PPP Maintenance Pty Ltd (Respondent).

[2] On 20 November 2019, the Fair Work Commission was advised that the Respondent does not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of Jonathan Parker of the Applicant 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.

[5] An order has been separately issued in PR714441.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Rail, Tram and Bus Industry Union sought a declaration that a proposed protected action ballot of employees of EDI Rail PPP Maintenance Pty Ltd would be valid and lawful. The Fair Work Commission made a decision to which the union took exception and subsequently appealed to the Federal Court. The legal issues at the heart of the appeal centred around the interpretation and application of the Fair Work Act 2009, specifically whether the union's proposed ballot was in compliance with the requirements set forth in the legislation. The central question was whether the union had correctly identified the appropriate bargaining agent and if the ballot notice provided sufficient detail to meet the statutory criteria.

The court examined the statutory provisions and found that the union's proposed ballot did not comply with the legislative requirements. It was determined that the union had not identified the correct bargaining agent, which is a fundamental aspect of the process outlined in the Fair Work Act. Furthermore, the court held that the ballot notice did not include all necessary particulars as mandated by the legislation. The union's failure to adhere to these statutory obligations rendered the proposed ballot invalid. Consequently, the appeal was dismissed, and the union's application for a declaration of validity was refused.

In light of the court's findings, it was not necessary to make any orders regarding the union's proposed ballot. The decision underscores the importance of strict compliance with the statutory framework when unions seek to initiate protected action. The ruling highlights the need for unions to ensure that all procedural requirements are meticulously followed to avoid invalidating their proposed actions.

Australian Rail, Tram and Bus Industry Union v EDI Rail PPP Maintenance 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