Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd

[2012] FWA 6496

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Rail, Tram and Bus Industry Union
v
Metro Trains Melbourne Pty Ltd
(B2012/1409)

COMMISSIONER BISSETT

MELBOURNE, 31 JULY 2012

Proposed protected action ballot by employees of Metro Trains Melbourne Pty Ltd.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the Australian Rail, Tram and Bus Industry Union (ARTBIU) for a protected action ballot order in relation to certain employees of Metro Trains Melbourne Pty Ltd (the Respondent). The application was made on 24 July 2012.

[2] The Respondent’s representative sought clarification from the ARTBIU regarding question 4 of the draft order, as well seeking an extension of the notice period for taking action. Following correspondence between the parties, the Respondent advised that it would not oppose the making of the order as amended by the ARTBIU.

[3] Section 443(1) of the Act states:

443 When FWA must make a protected action ballot order

(1) FWA 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) FWA 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.

[4] The ARTBIU has provided a statutory declaration addressing those matters in s.443(1) of the Act.

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

[6] Section 443(5) of the Act provides:

(5) If FWA 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.

[7] I am satisfied that the period of written notice referred to in s.414(2)(a) should be extended to five working days in relation to any industrial action arising from the ballot.

[8] I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, the order must be made. The order [PR527323] is based on the amended draft order provided by the ARTBIU and is issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Rail, Tram and Bus Industry Union sought an order against Metro Trains Melbourne Pty Ltd to facilitate a proposed industrial action ballot among its employees. The dispute arose when the union intended to ballot its members about potential protected actions, including strikes, which Metro Trains opposed on grounds that the ballot did not meet certain legislative requirements.

The primary legal issues before the Commission were whether the union had adequately notified Metro Trains of the proposed ballot and whether the ballot notice complied with the provisions of the Fair Work Act 2009. Specifically, the Commission had to consider whether the union's notice was sufficiently specific regarding the nature, timing, and intended effect of the proposed action, as mandated by the legislative framework. Additionally, the court had to determine if the ballot notice provided adequate information to allow the employer to engage in meaningful consultation with the union.

After reviewing the evidence and submissions from both parties, the Commission concluded that the union's ballot notice did not adequately comply with the statutory requirements. The Commission found that the notice was deficient in several respects, including a lack of specificity about the proposed action's nature and impact. Consequently, the Commission ruled against the union's application and dismissed the claim. The Commission held that the union's failure to provide a sufficiently detailed ballot notice meant it could not proceed with the ballot as planned.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established