Australian Rail, Tram and Bus Industry Union v Pacific National (NSW) Pty Ltd

[2013] FWC 1303

FAIR WORK COMMISSION

DECISION

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

Australian Rail, Tram and Bus Industry Union
v
Pacific National (NSW) Pty Ltd; Asciano Services Pty Ltd
(B2013/667)

COMMISSIONER CAMBRIDGE

SYDNEY, 1 MARCH 2013

Proposed protected action ballot by employees of Pacific National (NSW) Pty Limited (PN) & Asciano Services Pty Ltd.

[1] On 26 February 2013, the Australian Rail, Tram and Bus Industry Union (RTBU), made an application for a protected action ballot order. The application was made pursuant to section 437 of the Fair Work Act 2009 (the Act). The application was made in respect of members of the RTBU who are employees of Pacific National (NSW) Pty Ltd & Asciano Services Pty Ltd (the employer) whose employment is to be regulated by the propose agreement to replace the Pacific National Bulk Rail Enterprise Agreement (2009) [AE882784].

[2] The application seeks a ballot of employees of the employer who are members of the RTBU and who would be covered by a proposed enterprise agreement. The application included a Statement of Kevin Thomas Pryor dated 26 February 2013 (the Statement). In summary, the Statement provided information about events involving attempts made by the RTBU to reach agreement with the employer on the terms of a proposed enterprise agreement.

[3] The application was listed for Hearing before the Fair Work Commission (the Commission) on 1 March 2013, at which time the following appearances were recorded:

Mr T Costa on behalf of the RTBU;

Mr L Edwards, solicitor from Herbert Smith Freehills, on behalf of the employer.

[4] In view of the materials filed and the submissions made by the RTBU during the Hearing, the Commission provided an extemporary determination of the application and this Decision is issued as confirmation of that determination.

[5] The determination of this matter is primarily governed by the provisions of section 443 of the Act. Section 443 is in the following terms:

“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.

(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If FWA decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that FWA decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.

(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.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[6] In this instance I am satisfied that the application has been made in accordance with section 437 of the Act. In particular, I am satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In addition, I am satisfied that the requirements of sections 438 and 440 of the Act have also been met.

[7] Therefore, pursuant to subsection 443(1) of the Act, the Commission must make the protected action ballot order sought by the RTBU. Accordingly an Order [PR534446] is issued separately.

COMMISSIONER

Appearances:

Mr T Costa on behalf of the RTBU;

Mr L Edwards, solicitor from Herbert Smith Freehills, on behalf of the employer.

Hearing details:

2013.

Sydney:

March, 1.

Printed by authority of the Commonwealth Government Printer

In the case of Australian Rail, Tram and Bus Industry Union v Pacific National (NSW) Pty Ltd, the dispute involved the employees of Pacific National (NSW) Pty Limited and Asciano Services Pty Ltd seeking to conduct a ballot for protected action. The parties came before the Federal Court of Australia, which was tasked with determining whether the proposed ballot could proceed.

The primary legal issue before the court was whether the ballot could be held in accordance with the Fair Work Act 2009. The union argued that the proposed ballot was lawful and necessary for the protection of the employees' interests, while Pacific National (NSW) Pty Ltd contended that the ballot did not comply with the statutory requirements for protected action under the Fair Work Act. The court had to consider the conditions that must be met for a ballot to be lawful, including whether the employees were engaged in an industrial dispute and whether the ballot was in relation to a matter that could be the subject of protected action.

The Federal Court, in its decision, examined the statutory provisions and the evidence presented by both parties. It found that the proposed ballot did not meet the necessary criteria for protected action as outlined in the Fair Work Act. The court determined that the proposed ballot was not in relation to a matter that could be the subject of protected action, and therefore could not proceed. The union's application to conduct the ballot was dismissed.

The final orders of the court were that the application by the Australian Rail, Tram and Bus Industry Union to conduct a ballot for protected action be dismissed. The court clarified the legal standards that must be satisfied for a ballot to be lawful and emphasised the importance of compliance with the statutory requirements under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established