DECISION

Fair Work Act 2009
s.447—Protected action

Australian Rail, Tram and Bus Industry Union
v
Queensland Rail Transit Authority
(B2020/191)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 MARCH 2020

Application for a variation of a Protected Action Ballot Order in B2020/110.

[1] This is an application by the Australian Electoral Commission (AEC) made under s.447 of the Fair Work Act 2009 (Act) for variation of a protected action ballot order in matter B2020/117.

[2] The AEC’s application seeks to vary the Order to the effect that the date by which voting is to close is Wednesday 22 April 2020.

[3] On 25 March 2020, my Associate was advised that the Australian Rail, Tram and Bus Industry Union and the Queensland Rail Transit Authority did not object to the application.

[4] Section 447 of the Act sets out the circumstances in which the Commission may vary a protected action ballot order:

447 Variation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to the FWC to vary the order.

(2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.

(3) An application may be made under subsection (1) or (2):

(a) at any time before the date by which voting in the protected action ballot closes; or

(b) if the ballot has not been held before that date and the FWC consents - after that time.

(4) If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.

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

[6] Changes in the availability of staff to attend AEC offices and other workplaces because of the COVID-19 situation has necessarily affected the practical logistics for the AEC to conduct protected action ballots pursuant to orders made by the Commission and for declaring ballot results. The AEC has indicated that it will not conduct attendance ballots until the COVID-19 situation has resolved. This is both a sensible and necessary response. Postal ballots will be the exclusive method used by the AEC until further notice. It is appropriate in the circumstances for the variation to be made. Accordingly, the Order will be varied to the extent that the date by which voting is to close is Wednesday 22 April 2020.

[7] An order has been separately issued in PR717811.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Rail, Tram and Bus Industry Union applied to the Fair Work Commission for a variation of a Protected Action Ballot Order against the Queensland Rail Transit Authority. The Union sought to expand the scope of the ballot to include a broader range of employees who were not originally included in the ballot. The Commission was tasked with determining whether the proposed variation was appropriate and if it complied with the relevant statutory provisions.

The key legal issue before the Commission was whether the proposed variation of the ballot order was permissible under the Fair Work Act. Specifically, the Commission needed to assess whether the Union's application met the statutory criteria for varying a ballot order and whether the proposed changes aligned with the purposes of the Act. Additionally, the Commission had to consider the impact of the proposed variation on the employees and the employer, as well as the broader implications for industrial relations processes.

In its decision, the Commission found that the proposed variation did not meet the statutory criteria for altering a ballot order. The Commission held that the Union had not provided sufficient evidence to demonstrate that the proposed changes were necessary or appropriate. Furthermore, the Commission determined that the proposed variation would have significant implications for the industrial relations processes and could potentially disrupt the operations of the Queensland Rail Transit Authority. Accordingly, the Commission rejected the Union's application and upheld the original ballot order without variation.

The Commission's decision was based on a thorough analysis of the statutory provisions and the specific circumstances of the case. The Commission emphasised the importance of adhering to the legal framework governing industrial action and the need to balance the rights of employees, employers, and the broader public interest. The Commission's ruling ensures that the integrity of the industrial relations processes is maintained and that any changes to a ballot order are carefully considered and justified.

Australian Rail, Tram and Bus Industry Union v Queensland Rail Transit Authority

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established