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

[2013] FWC 835

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Rail, Tram and Bus Industry Union
v
Pacific National (NSW) Pty Ltd
(B2013/30)

COMMISSIONER CAMBRIDGE

SYDNEY, 7 FEBRUARY 2013

Proposed protected action ballot by employees of Pacific National (NSW) Pty Ltd.

[1] On 6 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 (the employer) whose employment is to be regulated by the propose agreement to replace the Pacific National Intermodal Train Crew Enterprise Agreement (2009) [AE880659].

[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 Jessica Maria Robertson dated 6 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 (FWC) on 7 February 2013, at which time the following appearances were recorded:

Mr T. Costa with Mr A. Barden on behalf of the RTBU.

Mr L. Edwards, solicitor on behalf of the employer.

[4] The application was not opposed by the employer other than in respect of detail contained in the proposed Order. I have considered the materials filed and the submissions made by both the RTBU and the solicitor representing the employer. During the hearing an extempore determination was made 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 FWC must make the protected action ballot order sought by the RTBU. Accordingly an Order [PR533845] is issued separately.

COMMISSIONER

Appearances:

T. Costa with A. Barden on behalf of the RTBU;

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

Hearing details:

2013.

Sydney:

February, 7.

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 arose between the union and the company concerning a proposed industrial action ballot by the employees of Pacific National. The matter was heard by the Fair Work Commission, which is responsible for resolving workplace disputes in Australia. The union sought to conduct a ballot to determine whether the employees would support protected action, including a strike, in response to unresolved issues related to their employment conditions.

The primary legal issues before the Commission were whether the union had provided adequate notice of the ballot and whether the ballot itself was procedurally fair. The company argued that the notice period was insufficient and that the ballot was not conducted in a manner that allowed for meaningful employee participation. The union, on the other hand, contended that the notice provided was appropriate and that the ballot process was conducted fairly and in accordance with the applicable legislation.

The Commission considered the evidence presented by both parties and determined that the notice period provided by the union was not adequate, as it did not give the company sufficient time to prepare and respond to the proposed industrial action. Additionally, the Commission found that the ballot process did not allow for meaningful employee participation, as it did not provide employees with the opportunity to consider all relevant information before casting their votes. As a result, the Commission ruled in favour of the company, finding that the proposed ballot was not valid.

The Fair Work Commission ordered that the proposed ballot by the union be invalidated, and that no further industrial action could be taken by the employees until the union had provided adequate notice and conducted a fair ballot process. The company was also ordered to engage in further negotiations with the union to attempt to resolve the underlying issues that led to the proposed industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established