Australian Rail, Tram and Bus Industry Union v Sydney Trains, NSW Trains T/A NSW TrainLink

[2022] FWC 556

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

(B2022/189)

VICE PRESIDENT CATANZARITI

SYDNEY, 14 MARCH 2022

Application to extend the 30 day period in relation to B2022/26

On 9 March 2022, 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, PR737691 made on 24 January 2022, and varied on 27 January 2022 [PR737828]. 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 9 February 2022. 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 expired at midnight on 10 March 2022.

On 10 March 2022, 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 expired at midnight on 10 March 2022, the extension period will operate from 10 March 2022.

An order has been separately issued in PR739270.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Rail, Tram and Bus Industry Union (Applicant) applied to the Fair Work Commission for an extension to the 30-day period for protected action authorised by a protected action ballot order. The order applies to certain employees of Sydney Trains and NSW Trains T/A NSW TrainLink (the Respondents). The ballot result, which authorised the proposed industrial action, was declared on 9 February 2022, and the 30-day period for protected action expired on 10 March 2022. The Respondents did not oppose the application to extend the 30-day period.

The legal issue before the Commission was whether the requirements of section 459 of the Fair Work Act 2009 were satisfied to grant an extension of the 30-day period for protected action. The relevant section of the Act provides for the extension of the period if certain conditions are met, including that the period has not been previously extended. The Commission needed to determine whether the application met these conditions.

The Commission found that the requirements of section 459 of the Act were satisfied, and that an extension of the 30-day period was appropriate. The Commission noted that the period had not been previously extended, and that the application was made by the Applicant who is the union that conducted the ballot. The Commission was satisfied that the extension was warranted based on the material before it.

The Fair Work Commission granted the application for an extension of the 30-day period for protected action. The extension period will operate from 10 March 2022. An order has been separately issued in PR739270.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established