Australian Rail, Tram and Bus Industry Union v Sydney Trains

[2021] FWC 5965

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Australian Rail, Tram and Bus Industry Union
v

Sydney Trains; NSW Trains T/A NSW TrainLink

(B2021/897)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 SEPTEMBER 2021

Application to extend the 30 day period in relation to B2021/455

On 20 September 2021, the Australian Rail, Tram and Bus Industry Union (Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s. 459(3) of the Fair Work Act 2009 (Cth) (the Act) to extend the 30 day period for protected action authorised by a protected action ballot order, PR732012 made on 8 August 2021. The Order applies to certain employees of Sydney Trains and NSW Trains T/A NSW TrainLink (the Respondents).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 30 August 2021. Pursuant to s. 459(1)(d)(i) of the Act, the 30 day period for protected action commenced on the date of the declaration of the results of the ballot and therefore expires at midnight on 28 September 2021.

On 21 September 2021, the Respondents advised the Commission via email that they do not oppose the Australian Rail, Tram and Bus Industry Union’s application to extend the 30 day period for protected industrial action. Accordingly, I have determined the matter on the basis of the documentation filed.

In addressing s.459(3) of the Act, this application is made by the Australian Rail, Tram and Bus Industry Union who is the Applicant for which the protected action ballot order was issued. Furthermore, the period specified in s.459(1)(d)(i) has not been previously extended.

On that basis and on the material before me, I am satisfied that each of the relevant requirements of s.459 of the Act have been met and that a 30 day extension is appropriate. As the 30 day period expires at midnight on 28 September 2021, the extension period will operate from 28 September 2021.

An order has been separately issued in PR734169.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Rail, Tram and Bus Industry Union (Applicant) sought to extend the 30 day period for protected action authorised by a protected action ballot order, PR732012, against Sydney Trains and NSW Trains T/A NSW TrainLink (Respondents). The ballot, which endorsed proposed forms of protected industrial action, was declared on 30 August 2021, and the 30 day period for protected action, as specified in s. 459(1)(d)(i) of the Fair Work Act 2009 (Cth) (Act), commenced on that date. The Respondents did not oppose the application to extend the 30 day period.

The primary legal issue before the Fair Work Commission was whether the 30 day period for protected action authorised by the ballot order could be extended under s.459(3) of the Act. The Commission needed to determine if the requirements of the section had been met and if a 30 day extension was appropriate. This required an examination of the provisions of the Act and the circumstances surrounding the application.

The Vice President of the Commission, Catanzariti, determined that the requirements of s.459 of the Act had been met. The protected action ballot order was issued to the Applicant, and the 30 day period had not been previously extended. Given that the Respondents did not oppose the application, and considering the documentation filed, the Vice President was satisfied that the extension was appropriate. The 30 day extension would commence from 28 September 2021, the date the initial period was set to expire. This decision was reflected in a separately issued order, PR734169.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established