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

[2022] FWC 97

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Rail, Tram and Bus Industry Union
v

Pacific National (Queensland Coal) Pty Ltd

(B2022/13)

VICE PRESIDENT CATANZARITI

SYDNEY, 20 JANUARY 2022

Proposed protected action ballot of employees of Pacific National (Queensland Coal) Pty Ltd

This is an application by the Australian Rail, Tram and Bus Industry Union, Queensland Branch (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Pacific National (Queensland Coal) Pty Ltd (Respondent).

On 14 January 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

On the basis of the material before me, including the statutory declaration of Bruce Mackie of the Applicant declared on 13 January 2022, 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.

An Order has been separately issued in PR737622.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has considered an application by the Australian Rail, Tram and Bus Industry Union, Queensland Branch for an order allowing a protected action ballot of employees of Pacific National (Queensland Coal) Pty Ltd. The application was made under section 437 of the Fair Work Act 2009. Pacific National (Queensland Coal) Pty Ltd did not oppose the application, allowing the matter to be decided on the papers without a hearing.

The primary legal issue before the Commission was whether the union had satisfied the requirements to hold a protected action ballot under section 437 of the Fair Work Act 2009. Specifically, the Commission needed to determine if there was a notification period for the proposed agreement and whether the union had genuinely attempted to reach an agreement with the employer, as required by section 443(1) of the Act. The evidence submitted, including the statutory declaration of Bruce Mackie, supported the union's claim that it had been genuinely attempting to reach an agreement and that the notification period had elapsed.

The Vice President of the Commission, Catanzariti, was satisfied that the union had met the necessary criteria. The union had provided sufficient evidence of its attempts to negotiate with the employer and demonstrated that the notification period had passed. Consequently, the application for a protected action ballot order was approved. An order was issued in the related proceedings, PR737622, and the decision was communicated in PR737623.

The Fair Work Commission's decision underscores the importance of adhering to the legal requirements when seeking to hold a protected action ballot. The union's compliance with the notification period and its genuine negotiation efforts were pivotal in the Commission's ruling. This case highlights the procedural safeguards in place to protect both the rights of employees and employers under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established