Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail Transit Authority T/A Queensland Rail

[2023] FWC 1109

FAIR WORK COMMISSION

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 Transit Authority T/A Queensland Rail

(B2023/424)

VICE PRESIDENT CATANZARITI

SYDNEY, 12 MAY 2023

Proposed protected action ballot of employees of Queensland Rail Transit Authority

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Plumbing Division Queensland Divisional Branch (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 Queensland Rail Transit Authority T/A Queensland Rail (Respondent).

On 9 May 2023, the Fair Work Commission was advised that the Respondent objected to the application, however, the parties were able to reach a consent position.

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

On the basis of the material before me, including the statutory declaration of Michael Wiech of the Applicant declared on 8 May 2023, 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.

An Order has been separately issued in PR761792.

VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Plumbing Division Queensland Divisional Branch, seeking a protected action ballot order concerning certain employees of Queensland Rail Transit Authority. This case, filed under section 437 of the Fair Work Act 2009, revolves around the proposed ballot of employees to authorise protected action, which typically involves industrial action such as strikes or lockouts. The Queensland Rail Transit Authority initially objected to the application but ultimately reached a consent position with the union, leading to a determination by the Commission on the papers without a formal hearing.

The central legal issues before the Commission involved confirming whether the union had genuinely attempted to reach an agreement with the employer and whether the statutory notification period for the proposed agreement had been met. These issues are critical as they determine the legitimacy and procedural correctness of the union's application for a protected action ballot. The union's ability to proceed with the ballot hinges on satisfying these prerequisites under section 443(1) of the Act.

The Vice President of the Fair Work Commission, Catanzariti, concluded that the union had indeed been genuinely trying to reach an agreement with the employer, as evidenced by the statutory declaration provided by Michael Wiech. This declaration detailed the steps taken during the bargaining process and affirmed the union's ongoing efforts to negotiate. Additionally, the Commission found that the statutory notification period had been appropriately observed. Consequently, the application was deemed valid, and an order was issued in PR761792, permitting the union to proceed with the protected action ballot.

This decision underscores the importance of procedural adherence and genuine negotiation efforts in industrial relations, ensuring that any proposed industrial action is both lawful and follows due process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established