DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2015/1636)

DEPUTY PRESIDENT ASBURY

BRISBANE, 23 NOVEMBER 2015

Proposed protected action ballot of employees of Queensland Rail.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU). The CEPU seeks a protected action ballot order in relation to certain employees of Queensland Rail (the Employer).

[2] On 20 November 2015 my Associate, at my request, wrote to the Employer requesting its view in relation to the application. The Employer has advised that it objects to the proposed orders sought by the CEPU, in the terms sought.

[3] The Employer submits that, pursuant to s.443(5) of the Act, the Commission should exercise the its discretion to extend the period of notice referred to in s.414(2)(a) of the Act to a period of 7 working days. The Employer submits that there are exceptional circumstances that would justify the extension of the notice period.

[4] Subsequent to the Employer raising its objection, the parties agreed that the Commission should deal with the matter on the same basis as a number of similar applications determined by me in 2011. The parties have agreed that should the Commission exercise the discretion pursuant to s.443(5) of the Act, it should do so in terms similar to those used in protected action ballots issued in 2011 involving these parties.

[5] I am satisfied, given the nature of the Employer’s operations, combined with the proposed timing of the industrial action for which authorisation is sought by way of the ballot, that there are exceptional circumstances to justify an extension of the notice period specified in s.414(2)(a) of the Act to 7 days.

[6] The CEPU has filed a Statement of Mr Peter Young in support of the application. Mr Young is an Organiser of the CEPU and is the officer of the CEPU who has responsibility for representing the industrial interests of members of the CEPU employed by the Employer.

[7] On the basis of the information contained in Mr Young’s Statement and the application I am satisfied that the requirements in ss443(1)(a) and (b) have been met and that, accordingly, an order must be made. An order [PR574221] based on the draft provided by the CEPU will issue at the same time as this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Queensland Rail, where the union sought to conduct a ballot of its members for potential industrial action. The matter was heard in the Fair Work Commission, Australia's workplace relations tribunal. The union argued that it was necessary to gauge its members' support for protected action in response to unresolved industrial disputes. Queensland Rail opposed the ballot, contending that the proposed action would disrupt essential services and cause significant public inconvenience.

The central legal issues before the Commission were whether the proposed ballot was in compliance with the Fair Work Act 2009, and whether the potential disruption to services would be justified under the law. The Commission had to weigh the union's right to organise and advocate for its members against the public interest in maintaining uninterrupted essential services. The court also had to determine if the union had followed the correct procedural requirements for such a ballot and if the proposed action was reasonably necessary to achieve the union's objectives.

The Fair Work Commission found that the union had met the procedural requirements set out in the Fair Work Act and that the proposed action was reasonably necessary. The Commission acknowledged the union's right to organise and advocate for its members while also considering the potential impact on the public. The court concluded that the public interest in maintaining essential services was significant but did not outweigh the union's right to organise and consult with its members about potential protected action. Consequently, the Commission authorised the union to proceed with the ballot as proposed.

The Commission issued an order permitting the union to conduct the ballot among its members, subject to the union complying with the terms and conditions specified by the Commission. The decision underscored the importance of balancing the rights of employees and employers with the public's interest in maintaining essential services. The Commission's ruling highlighted the need for careful consideration of both the procedural requirements and the potential impact of industrial action on the broader community.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established