DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Queensland Rail Limited
(B2015/1710)

DEPUTY PRESIDENT ASBURY

BRISBANE, 17 DECEMBER 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 15 December 2015 my Associate, at my request, wrote to the Employer requesting their view in relation to the application. The Employer has advised in writing that it does not object to the proposed orders sought by the CEPU.

[3] The CEPU has filed a Statement of Mr Jim White in support of the application. Mr White is an Organiser for the CEPU who has responsibility for representing the industrial interests of members of the CEPU employed by the Employer.

[4] On the basis of the information contained in Mr White’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 [PR575122] 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

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought authorisation for its members employed by Queensland Rail Limited to engage in protected action, specifically a ballot of employees to determine their support for potential industrial action. The Commission was tasked with determining whether the proposed protected action met the criteria set out in the Fair Work Act 2009. The key issue was whether the proposed protected action constituted "protected action" within the meaning of the Act and if it was in relation to a "workplace dispute".

The Commission began by noting that the proposed protected action was a ballot of employees to ascertain their support for potential industrial action. The ballot was intended to be a preliminary step to determine if there was sufficient support for industrial action. The Commission recognised that a ballot of employees could constitute protected action if it was in relation to a workplace dispute and if it was intended to achieve a workplace outcome. The Commission determined that the ballot was in relation to a workplace dispute because it was proposed in the context of negotiations over a new enterprise agreement and sought to determine the level of support for potential industrial action. The Commission also found that the ballot was intended to achieve a workplace outcome by potentially leading to industrial action if the employees expressed support for such action. Given these findings, the Commission concluded that the proposed protected action met the criteria for authorisation under the Act.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established