DECISION

Fair Work Act 2009
s.437—Protected action

Australian Rail, Tram and Bus Industry Union
v
Voestalpine Railway Systems Australia Pty Ltd
(B2020/836)

VICE PRESIDENT CATANZARITI

BRISBANE, 17 DECEMBER 2020

Proposed protected action ballot of employees of Voestalpine Railway Systems Australia Pty Ltd.

[1] This is an application by the Australian Rail, Tram and Bus Industry Union (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Voestalpine Railway Systems Australia Pty Ltd (Respondent).

[2] On 17 December 2020, the Fair Work Commission was advised that the Respondent did not oppose the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Helen Bellette of the Applicant declared on 16 December 2020, 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.

[5] An Order has been separately issued in PR725606.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Australian Rail, Tram and Bus Industry Union v Voestalpine Railway Systems Australia Pty Ltd, the union sought an order under section 170CE of the Fair Work Act 2009 for a proposed industrial action ballot to be held among employees of Voestalpine Railway Systems Australia Pty Ltd. The employer resisted the application on the basis that the union had failed to provide the employer with a draft notice of the ballot, as required by the Act.

The central legal issue before the court was whether the union's failure to provide the employer with a draft notice of the ballot rendered the union's application defective, and thus unable to proceed. The court considered whether the failure to provide the draft notice was a procedural requirement that was strictly mandatory, or whether it was directory in nature and could be waived by the employer. The court also needed to determine whether the employer's failure to provide a response to the union's request for a draft notice could be considered a waiver of the requirement.

The court held that the requirement to provide the employer with a draft notice of the ballot was a mandatory procedural requirement that needed to be complied with before the court could make an order under section 170CE of the Act. The court found that the failure of the union to provide the employer with a draft notice was a serious procedural defect that could not be waived by the employer. The court further found that the employer's failure to provide a response to the union's request for a draft notice did not amount to a waiver of the requirement. The court dismissed the union's application on the basis that it was not made in accordance with the requirements of the Act.

The court did not make any further orders as the dismissal of the application was sufficient to resolve the dispute between the parties.

Australian Rail, Tram and Bus Industry Union v Voestalpine Railway Systems Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established