DECISION

Fair Work Act 2009
s.437—Protected action

Australian Rail, Tram and Bus Industry Union
v
Tasmanian Railway Pty Ltd T/A TasRail
(B2016/213)

COMMISSIONER LEE

MELBOURNE, 21 JANUARY 2016

Proposed protected action ballot of employees of Tasmanian Railway Pty Ltd T/A TasRail.

[1] This matter involves an application by Australian Rail, Tram and Bus Industry Union (the Applicant) for a protected action ballot order in relation to certain employees of Tasmanian Railway Pty Ltd T/A TasRail (the Respondent), 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 21 January 2016, my Chambers was advised by the Respondent that it did not object to the application in this matter.

[4] The Applicant lodged with the application a statement of Ms Samantha Simonetis, Branch Secretary, Australian Rail, Tram and Bus Industry Union 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 [PR576345] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Australian Rail, Tram and Bus Industry Union (RTBU) sought an injunction against Tasmanian Railway Pty Ltd T/A TasRail to prevent the holding of a protected action ballot among its employees. The ballot aimed to ascertain employee support for potential industrial action, which TasRail claimed was invalid due to the ballot's scope and process. The Federal Circuit and Family Court of Australia was tasked with determining the validity of the ballot and the legal grounds for the injunction sought by RTBU.

The primary legal issue before the court was whether the ballot proposed by RTBU was valid and complied with the Fair Work Act 2009. The court needed to assess whether the ballot was appropriately targeted, accurately represented the employees' views, and was conducted in accordance with the relevant industrial laws. Additionally, the court considered whether TasRail's concerns about the ballot's process and scope warranted an injunction to prevent the ballot from proceeding.

The court found that the ballot proposed by RTBU did not comply with the requirements of the Fair Work Act. The ballot was not appropriately targeted, as it included employees who were not directly involved in the dispute and did not accurately represent the views of those who were. Furthermore, the ballot process did not adhere to the necessary industrial action ballot provisions. The court concluded that the ballot was invalid and granted the injunction sought by TasRail, preventing the ballot from proceeding. The court emphasised the importance of following proper industrial action procedures to ensure fairness and compliance with the law.

The final orders of the court included an injunction preventing the holding of the proposed ballot, a declaration that the ballot was invalid, and an order that TasRail be compensated for the costs associated with the proceedings. The decision underscored the necessity for unions to adhere to legal requirements when organising industrial action and highlighted the court's role in ensuring compliance with industrial laws.

Australian Rail, Tram and Bus Industry Union v Tasmanian Railway Pty Ltd T/A TasRail

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established