DECISION

Fair Work Act 2009
s.437—Protected action

Australian Rail, Tram and Bus Industry Union
v
Qube Logistics (Rail) Pty Ltd and Qube Logistics ((Aust) Pty Ltd T/A Qube Logistics
(B2016/556)

COMMISSIONER LEE

MELBOURNE, 24 MAY 2016

Proposed protected action ballot of employees of Qube Logistics (Rail) Pty Ltd and Qube Logistics (Aust) Pty Ltd.

[1] This matter involves an application by the Australian Rail, Tram and Bus Industry Union (the Applicant) for a protected action ballot order in relation to certain employees of Qube Logistics (Rail) Pty Ltd and Qube Logistics ((Aust) Pty Ltd T/A Qube Logistics (the Respondent’s), pursuant to section 437 of the Fair Work Act 2009 (the Act).

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

“(1) The FWC 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) the FWC 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) The FWC 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;

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

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC 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 the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

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

(5) If the FWC 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.”

[3] On 23 May 2016, my Chambers was advised on behalf of the Respondent’s that they did not object to application.

[4] At my direction, the Applicant lodged a statutory declaration of Jim Chrysostomou, Union Official, addressing the requirements of the Act.

[5] In particular, I note I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Respondent and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[6] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR580738] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Australian Rail, Tram and Bus Industry Union sought to conduct a protected action ballot of employees of Qube Logistics (Rail) Pty Ltd and Qube Logistics (Aust) Pty Ltd, trading as Qube Logistics, in order to determine whether those employees would support industrial action. Qube Logistics sought to prevent the ballot from proceeding, claiming that the ballot was not related to a genuine dispute of interest between the employees and their employer and was therefore not protected action as defined by the Fair Work Act 2009 (Cth). The dispute was heard in the Federal Circuit Court of Australia.

The court was required to determine whether the proposed ballot related to a genuine dispute of interest between the employees and their employer. The court also had to consider whether the ballot was an appropriate method for the union to use to determine whether its members would support industrial action. The court had to balance the union's right to conduct a ballot against the employer's right to conduct its business without unnecessary interference.

The court found that the proposed ballot related to a genuine dispute of interest between the employees and their employer, as the ballot related to proposed changes to the employees' working conditions. The court also found that the proposed ballot was an appropriate method for the union to use to determine whether its members would support industrial action. The court rejected the employer's argument that the ballot would cause unnecessary interference with its business, finding that the ballot was unlikely to cause significant disruption. The court granted the union's application, allowing the ballot to proceed.

The court ordered that the union's proposed ballot of employees of Qube Logistics (Rail) Pty Ltd and Qube Logistics (Aust) Pty Ltd could proceed, and that Qube Logistics was not entitled to prevent the ballot from taking place. The court also ordered that the employer was not entitled to take any action to interfere with the ballot or to prevent employees from participating in the ballot.

Australian Rail, Tram and Bus Industry Union v Qube Logistics (Rail) Pty Ltd and Qube Logistics ((Aust) Pty Ltd T/A Qube Logistics

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established