Australian Rail, Tram and Bus Industry Union v v/Line Maintenance Pty Limited

[2022] FWC 1232

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Rail, Tram and Bus Industry Union
v

V/Line Maintenance Pty Limited

(B2022/451)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 19 MAY 2022

Proposed protected action ballot of employees of V/Line Maintenance Pty Limited.

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 V/Line Maintenance Pty Limited (the Respondent).

On 19 May 2022, my Associate was advised that the Respondent 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 Ms Amanda Swayn of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An order has been separately issued in PR741781.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Rail, Tram and Bus Industry Union filed an application under section 437 of the Fair Work Act 2009 seeking approval for a protected action ballot among certain employees of V/Line Maintenance Pty Limited. The application was made in the context of ongoing negotiations and an attempt to reach a new agreement. The Fair Work Commission was required to determine whether the union had satisfied the legal prerequisites for conducting a ballot, including demonstrating that it had genuinely attempted to negotiate with the employer and that a notification period had elapsed.

The legal issues before the Commission were whether the union had fulfilled the requirements of section 443(1) of the Fair Work Act and whether the notification period for the proposed agreement had been met. The Commission assessed the evidence provided by the union, including a declaration from Ms. Amanda Swayn, outlining the steps taken in the bargaining process and confirming the union's genuine efforts to reach an agreement. The Commission needed to verify that the union had genuinely attempted to negotiate with the employer and that the necessary notification period had elapsed before a ballot could be conducted.

Upon reviewing the evidence, Deputy President Clancy concluded that the union had met the legal requirements for a protected action ballot. The union's declaration and the lack of objection from the employer indicated that the notification period had passed and that the union had genuinely tried to negotiate. Consequently, the application for a ballot order was approved. The decision was made without a hearing as the employer did not object to the application.

The Fair Work Commission issued an order approving the protected action ballot, allowing the union to proceed with the ballot among the specified employees of V/Line Maintenance Pty Limited. The order was issued in accordance with the Fair Work Act, reflecting the Commission's determination that the union had satisfied the necessary legal conditions for conducting the ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established