Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Tasmanian Railway Pty Ltd

[2013] FWC 8534

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 Ltd
(B2013/1353)

COMMISSIONER LEE

MELBOURNE, 29 OCTOBER 2013

Proposed protected action ballot by employees of Tasmanian Railway Pty Ltd.

[1] This matter involves an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) for a protected action ballot order in relation to certain employees of Tasmanian Railway Pty Ltd (the Employer), made on 25 October 2013.

[2] Section 443(1) of the Act states:

“(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[3] The Applicant provided with the application sworn statements of Ms Leaselle Archer, delegate and Mr Todd Lambert, State Organiser, addressing the requirements of the Act.

[4] On 29 October 2013, my Chambers was advised by the Employer that it did not seek to oppose the application and did not wish to make any submissions (that is, the Employer did not challenge that the Applicant has been and is genuinely trying to reach an agreement.).

[5] In the circumstances, I have decided to determine the matter on the papers.

[6] I am satisfied that the application meets the requirements of section 437 of the Act. I am satisfied that the application meets the requirements of section 438 of the Act, that is the application has not been made earlier than 30 days before the nominal expiry date of the Tasmanian Railway Pty Ltd General Enterprise Agreement 2011.

[7] I am satisfied that the requirements of section 440 of the Act have been met.

[8] I am satisfied that the requirements of section 443 of the Act have been met, in particular that the Applicant has been and is genuinely trying to reach an agreement with the Employer and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[9] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR543947] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Tasmanian Railway Pty Ltd, the union sought to conduct a ballot of its members employed by Tasmanian Railway Pty Ltd regarding potential protected action. The dispute centred on the union's right to conduct such a ballot and the procedural requirements that must be satisfied under the Fair Work Act 2009 (Cth). The Fair Work Commission was the tribunal that heard the matter.

The central legal issue before the court was whether the union had satisfied the statutory prerequisites to lawfully conduct a ballot of its members. Specifically, the union needed to demonstrate that it had followed the correct procedures as outlined in the Fair Work Act. This included ensuring that the ballot notice was properly given to the employer and that it contained all the necessary information as required by the legislation. The court also needed to determine whether the union had acted in good faith and whether the ballot was being conducted for a genuine industrial purpose.

The Fair Work Commission carefully examined the union's actions and found that the union had indeed complied with all the necessary statutory requirements. The court noted that the union had provided the employer with the required notice and that the ballot notice contained all the necessary information. Additionally, the commission concluded that the union had acted in good faith and that the proposed ballot was being conducted for a legitimate industrial purpose. As a result, the union was permitted to proceed with the ballot.

The Fair Work Commission ruled in favour of the union, granting permission for the proposed ballot to proceed. The union was found to have satisfied all the legal requirements for conducting the ballot, including proper notice to the employer and compliance with the procedural mandates of the Fair Work Act. The court's decision reinforced the importance of following statutory procedures when conducting industrial action and confirmed the union's right to ballot its members under the given circumstances.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established