Australian Rail, Tram and Bus Industry Union v Pacific National Bulk Rail Pty Ltd

[2021] FWC 196

[2021] FWC 196

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Rail, Tram and Bus Industry Union
v
Pacific National Bulk Rail Pty Ltd
(B2021/9)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 15 JANUARY 2021

Proposed protected action ballot of employees of Pacific National Bulk Rail 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 Pacific National Bulk Rail Pty Ltd (Respondent).

[2] On 11 January 2021, my Associate was advised that the Respondent did not oppose the making of a protected action ballot order but contended that two aspects of the draft proposed order ought be changed. First, the Respondent sought amendments to ballot questions one to four of the Applicant’s draft order. Secondly, the Respondent sought an extended notice period of intended industrial action in accordance with s.443(5) of the Act. The Respondent sought to be heard in respect of the second matter.

[3] In the circumstances, the matter was listed for hearing before me on 15 January 2021. Ms J Dawson-Field was granted leave pursuant to s.596(2)(a) of the Act to appear on behalf of the Applicant. Mr D Chrysostomou, Assistant Secretary of the Australian Rail, Tram and Bus Industry Union, gave evidence on behalf of the Applicant. Mr D Perry was granted leave pursuant to s.596(2)(a) of the Act to appear on behalf of the Respondent. Mr D Geary, Manager Operations - Victoria Bulk and Regional, gave evidence on behalf of the Respondent.

[4] The Applicant agreed to the amendments to ballot questions one to four sought by the Respondent. 1 Initially, the Applicant submitted that the Commission ought not find that exceptional circumstances exist nor specify a period of notice greater than three working days for the taking of industrial action.2

[5] However during the course of the hearing the parties agreed, in relation to certain forms of the proposed industrial action that is to be the subject of the protected action ballot, that the period of written notice referred to in s.414(2)(a) of the Act should be longer than three working days.

[6] The Respondent provided material directed to the circumstances that are said to justify a longer period of written notice. In short compass, the exceptional circumstances relied upon by the Respondent include what is anticipated to be a record grain crop in the Wimmera and Mallee regions of Victoria and Central Victoria 3 and the impact that any industrial action will have on the Respondent’s customers and farmers.4

[7] I am satisfied the material discloses exceptional circumstances and that those circumstances justify a longer notice period for some of the forms of industrial action proposed in the ballot questions. There are no grounds of which I am aware which would cause me not to exercise my discretion given my finding. The parties have agreed on variable extended notice periods for the proposed industrial action in questions one to four of the order. I propose to allow the variable extended notice periods according to that agreement. The protected action ballot order will reflect these variable extended notice periods. Based on this, I am satisfied and exercise my discretion under s.443(5) of the Act to extend the notice periods.

[8] On the basis of the material before me, including the statutory declaration of Mr D Chrysostomou 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.

[9] An order has been separately issued in PR726195.

DEPUTY PRESIDENT

Appearances:

J Dawson-Field on behalf of the Applicant
D Perry on behalf of the Respondent

Hearing details:

2021
Melbourne (via video)
15 January

Final written submissions:

Applicant, 15 January 2021
Respondent, 14 January 2021

Printed by authority of the Commonwealth Government Printer

<PR726194>

 1   RTBU’s Outline of Submissions dated 15 January 2021 at [24]

 2   Ibid at [6]

 3   Respondent’s Outline of Submissions dated 14 January 2021 at [10]

 4   Ibid at [11]