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

[2022] FWC 223

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

Sydney Trains

(B2022/35)

VICE PRESIDENT CATANZARITI

SYDNEY, 3 FEBRUARY 2022

Proposed protected action ballot of employees of Sydney Trains

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (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 Sydney Trains (Respondent).

On 2 February 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

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 Tara Koot of the Applicant declared on 27 January 2022, 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 PR738004.

VICE 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 commenced proceedings against Sydney Trains. The Union sought approval to conduct a ballot of its members employed by Sydney Trains to determine whether to engage in protected action. The dispute centred on the nature of the proposed protected action, which Sydney Trains argued was not protected action under the Fair Work Act 2009. The Commission was required to determine whether the proposed action was protected action and, if so, whether it was protected action that could be lawfully undertaken.

The Commission examined the definition of protected action under section 351 of the Fair Work Act. It considered the nature of the proposed action, the scope of the industrial dispute, and the requirements of the Act. The Union argued that the proposed action was protected action because it was part of an industrial dispute and the employees were acting in pursuit of their economic interests. Sydney Trains contended that the proposed action was not protected action because it did not relate to an industrial dispute and was not taken in pursuit of an employee’s workplace rights.

The Commission found that the proposed action was protected action because it related to an industrial dispute and was taken in pursuit of an employee’s economic interests. The Commission noted that the proposed action was part of a broader campaign to address issues related to the employees' terms and conditions of employment, which constituted an industrial dispute. The Commission also found that the proposed action was protected action because it was taken in pursuit of the employees' economic interests, as it related to their wages, hours of work, and other conditions of employment. The Commission concluded that the proposed action was protected action that could be lawfully undertaken.

The Commission approved the proposed ballot of employees of Sydney Trains to determine whether to engage in protected action. The decision underscores the importance of ensuring that protected action is taken in pursuit of genuine industrial objectives and that it is not taken for illegitimate purposes. The decision also highlights the need for employers and unions to engage in good faith bargaining and to avoid taking action that may be detrimental to the industrial relations system.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established