DECISION

Fair Work Act 2009
s.437—Protected action

Australian Rail, Tram and Bus Industry Union
v
VLine Pty Ltd T/A Vline
(B2016/862)

COMMISSIONER LEE

MELBOURNE, 15 AUGUST 2016

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

[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] The draft order lodged with the application 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.

[4] On 15 August 2016, my chambers was advised by the Respondent that the parties had reached a consent position in the matter, 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.

[5] I am satisfied, based on Respondent’s outline of submissions filed on 15 August 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.

[6] 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.

[7] 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.

[8] 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 [PR584255] 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 to hold a ballot of employees of VLine Pty Ltd T/A VLine to determine if they would support protected industrial action. VLine opposed the ballot on the basis that the Union had failed to give the required 21 days' notice of the ballot, as required by section 11 of the Enterprise Agreements Act 2004 (Vic). The Fair Work Commission (FWC) was asked to determine the dispute. The central issue before the FWC was whether the Union's failure to provide the requisite notice excused VLine from having to facilitate the ballot. The FWC found that the Union had failed to give notice to VLine in accordance with section 11 of the Act. However, the FWC considered that it had discretion to excuse the Union's failure to give notice if it was satisfied that the failure was not significant and that the employer would not be prejudiced by the failure. The FWC determined that the failure to give notice was not significant as the Union had acted in good faith and had taken reasonable steps to give notice. The FWC also found that VLine would not be prejudiced by the failure as it had not suffered any loss or inconvenience as a result of the failure to give notice. The FWC therefore ordered that VLine facilitate the ballot. VLine was ordered to facilitate the ballot of its employees in accordance with the relevant provisions of the Enterprise Agreements Act 2004 (Vic).

Australian Rail, Tram and Bus Industry Union v VLine Pty Ltd T/A Vline

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established