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

[2024] FWC 852

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

Queensland Rail Transit Authority T/A Queensland Rail

(B2024/389)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 4 APRIL 2024

Proposed protected action ballot of employees of Queensland Rail Transit Authority T/A Queensland Rail

This is an application by the Australian Rail, Tram and Bus Industry Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Queensland Rail Transit Authority T/A Queensland Rail (Employer). This matter is related to B2024/390.

On 2 April 2024, the Commission was advised that the Employer did not object to 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 declaration of Stefanie Whyte, Locomotive Division Organiser, RTBU Queensland Branch, setting out the steps taken by the Applicant in bargaining with the Employer and that they have been, and are, genuinely trying to reach agreement with the Employer, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

Based on the Employer’s submissions and the terms of the agreement reached between the parties, I am satisfied that there are exceptional circumstances justifying the period of written notice being longer than 3 working days for the industrial action referred to in all of the ballot questions. Pursuant to s.443(5) of the Act, the period of written notice for the purposes of s414(2)(b) of the Act is 7 calendar days for the industrial action referred to in all of the ballot questions.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 17 May 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR773128.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is in effect 30 working days from the date of the order, as sought in the application.

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 protected action ballot order under the Fair Work Act 2009. The application was in relation to certain employees of Queensland Rail Transit Authority T/A Queensland Rail. The Commission determined the matter without a hearing after the employer indicated they did not object to the application. The Deputy President of the Commission, Wright, considered the evidence provided by the union, which included a declaration from the union's representative, and found that the union had genuinely tried to reach an agreement with the employer.

The legal issues before the Court were whether the union had followed the necessary procedures for a protected action ballot and whether the employer had any objections to the ballot. The Court had to determine if the union had met the requirements under section 443(1) of the Fair Work Act 2009 and if the period of written notice for the industrial action was justified under section 443(5) of the Act.

The Deputy President found that the union had met all the requirements for a protected action ballot under the Fair Work Act 2009, including the notification time and the genuine attempts to reach an agreement with the employer. The Deputy President also found that there were exceptional circumstances justifying the period of written notice being longer than three working days for the industrial action. The Deputy President set the closing date for the ballot as 17 May 2024, which was 30 working days from the date of the order. The Commission also determined that a compulsory conciliation conference would be held, and the matter would be assigned to another Member of the Commission.

No further orders were made in this decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established