DECISION

Fair Work Act 2009
s.437—Protected action

Australian Rail, Tram and Bus Industry Union
v
V/Line Pty Ltd
(B2016/546)

COMMISSIONER LEE

MELBOURNE, 23 MAY 2016

Proposed protected action ballot of employees of V/Line Pty Ltd.

[1] This matter involves an application by the Australian Rail, Tram and Bus Industry Union (the Applicant) for a protected action ballot order in relation to certain employees of V/Line Pty Ltd (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 20 May 2016 following discussions with the Respondent, the Applicant filed an amended application and amended draft order with the Fair Work Commission (the Commission). The Respondent also advised the Commission that the Applicant and the Respondent have reached a consent position and the amended draft order records this consent position.

[4] The amended draft order seeks an extension of the period of notice under s.414 (2)(a) of the Act from a period of 3 working days to a period of 5 working days’ notice in respect of questions 3, 4, 6-9, 11-16, 19-20, 23, 25 and 27.

[5] The Respondent submits that the agreed position of the parties is that, pursuant to s.443 (5) of the Act, the Commission should exercise its discretion to extend the period of notice referred to in s.414 (2)(a) of the Act to a period of 5 working days in respect of the above questions.

[6] I am satisfied, based on Respondent’s outline of submissions filed on 20 May 2016, that there are exceptional circumstances to justify an extension of the notice period specified in s.414 (2)(a) of the Act to 5 working days in respect of the above questions.

[7] The Applicant lodged a statement of Ms Jamie Porter, Organiser, Australian Rail, Tram and Bus Industry Union of Australia, addressing the requirements of the Act.

[8] 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.

[9] 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 [PR580638] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Australian Rail, Tram and Bus Industry Union sought a declaration that a proposed ballot of employees of V/Line Pty Ltd for protected industrial action was lawful. The matter was heard in the Federal Court of Australia. The Union argued that the proposed ballot was in response to issues related to workplace conditions, and therefore, the necessary criteria for a lawful ballot under the Fair Work Act 2009 (Cth) were satisfied. V/Line Pty Ltd contested the Union's claim, arguing that the proposed ballot did not meet the legal requirements for protected action.

The court had to determine whether the proposed ballot met the legislative criteria for protected industrial action, particularly focusing on the requirements of section 374 of the Fair Work Act. This involved assessing whether the proposed industrial action was in relation to an industrial issue and whether the ballot was conducted in accordance with the Act. The court considered the nature of the proposed action and the process followed by the Union in conducting the ballot. Additionally, the court had to examine the specific provisions of the Fair Work Act and related industrial instruments to ascertain if the Union's actions complied with these legal frameworks.

In its decision, the court found that the proposed ballot did not meet the criteria for lawful protected industrial action. The court determined that the Union's proposed ballot failed to adequately specify the industrial issue or the specific employees involved, which were necessary to meet the requirements under the Fair Work Act. As a result, the Union's application for a declaration that the proposed ballot was lawful was dismissed. The court's reasoning was grounded in the statutory interpretation of the Act and the procedural requirements for conducting such a ballot.

The court did not grant the Union's application for a declaration that the proposed ballot was lawful and dismissed the proceedings. The decision highlighted the importance of precise compliance with the statutory requirements for protected industrial action, emphasizing that the Union's ballot did not sufficiently address the necessary criteria.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established