Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Tasmanian Railway Pty Limited T/A TasRail Summary

[2022] FWC 915

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

Tasmanian Railway Pty Limited T/A TasRail

(B2022/335)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 20 APRIL 2022

Proposed protected action ballot of employees of Tasmanian Railway Pty Limited T/A TasRail.

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 (Act) for a protected action ballot order in relation to certain employees of Tasmanian Railway Pty Limited T/A TasRail (the Respondent).

On 20 April 2022, my Associate was advised that the Respondent did not object to 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 declaration of Mr Lee Archer of the Applicant 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 PR740525.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, in the matter of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia versus Tasmanian Railway Pty Limited trading as TasRail, heard an application under section 437 of the Fair Work Act 2009. The Applicant sought an order permitting a ballot of employees to take protected industrial action. The Respondent, who did not object to the application, is a company operating in the Tasmanian railway sector. The application was made in the context of ongoing negotiations between the Applicant, acting on behalf of its members, and the Respondent regarding a proposed enterprise agreement.

The legal issues before the Commission were whether there was a notification time in relation to the proposed agreement and whether the requirements of section 443(1) of the Fair Work Act had been fulfilled. The Applicant submitted that it had genuinely been trying to reach agreement with the Respondent, and provided a declaration from Mr Lee Archer, setting out the steps taken in the bargaining process. The Respondent did not contest the application, thereby implicitly accepting that the conditions for a protected action ballot were met.

The Deputy President, having considered the material before the Commission, including the declaration of Mr Lee Archer, was satisfied that the notification time in relation to the proposed agreement existed and that the requirements of section 443(1) of the Act had been met. Consequently, the application was granted, and an order was issued permitting the proposed ballot. The decision was made on the papers without the necessity for a hearing, given the Respondent's lack of objection.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Tasmanian Railway Pty Limited T/A TasRail

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established