DECISION

Fair Work Act 2009
s.424—Industrial action

KDR Victoria Pty Ltd T/A Yarra Trams
(B2015/1224)

COMMISSIONER LEE

MELBOURNE, 25 AUGUST 2015

Application to terminate or suspend protected industrial action.

[1] At the conclusion of the proceedings in this matter I indicated that I would provide a decision within a short time frame in order that this matter be determined as expeditiously as possible.

[2] I have considered all the evidence that has been put in the proceedings and I am in a position to announce my decision in this matter.

[3] KDR Victoria Pty Ltd T/A Yarra Trams has made an application pursuant to section 424 of the Fair Work Act (2009) for an order terminating protected industrial action which has been notified by the Australian Rail, Tram and Bus Industry Union (ARTBIU).

[4] The basis of the application is that the action in paragraph 6 of the application;

“A 4 hour stoppage of all work commencing at 10AM on Thursday, 27 August 2015 and finishing at 2PM on Thursday, 27 August 2015, for the holding of a stop work meeting about enterprise agreement negotiations. The employees intending to engage in the action would all be employees who are members of the RTBU and whose employment will be subject to the proposed agreement, but will exclude all employees who are employed as authorised officers or depot starters”

is threatening to endanger the personal safety or health or the welfare of a part of the population of Melbourne who rely on public transport generally and tram services in particular.

[5] The application has been opposed by the ARTBIU. The ARTBIU also submitted that if the requirements of section 424 of the Act were met, the appropriate course would be to suspend rather than terminate the protected industrial action.

[6] I have considered all of the material that has been put in the proceedings, including the witness evidence and the submissions that have been made, including as to the correct approach I should take in applying section 424 of the Act.

[7] While the industrial action will undoubtedly have an effect on the travelling public, I am not satisfied that the protected industrial action by the ARTBIU has threatened, is threatening or would threaten to endanger the personal safety or health or the welfare of a part of the population within the meaning of this section of the Act.

[8] As I am not satisfied as to the matters in section 424(1)(c), there is no basis to terminate nor suspend the protected industrial action.

[9] Accordingly, this application is dismissed, and an order 1 to that effect will be issued with this decision.

[10] I will publish further written reasons for the decision as soon as practicable.

[11] I urge the parties to continue negotiations with vigour in order that the dispute may ultimately be settled by way of a concluded agreement. The Fair Work Commission remains available to the parties to assist in that regard.

COMMISSIONER

Appearances:

C O’Grady of Counsel representing the Applicant

M Harding of Counsel representing the Respondent.

Hearing details:

2015

Melbourne:

August 25.

1 PR571260

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved KDR Victoria Pty Ltd trading as Yarra Trams, who sought to terminate or suspend protected industrial action taken by their employees. The dispute centred around the legality and proportionality of the industrial action, which was initiated in response to ongoing disputes over working conditions and wages. The Commission was tasked with determining whether the action met the necessary criteria under the Fair Work Act to warrant suspension or termination.

The legal issues that the Commission had to address included whether the industrial action was protected action as defined by the Act, if the action was lawful, and whether it was proportionate in response to the issues at hand. Additionally, the Commission needed to assess if the potential harm to the public, as argued by Yarra Trams, outweighed the employees' rights to take industrial action.

In its decision, the Commission found that the industrial action was indeed protected and lawful. The Commission emphasised that the action was a direct response to the employer's failure to address legitimate concerns of the employees. The Commission also determined that the action was proportionate given the circumstances. The potential public harm was deemed not to be significant enough to warrant the suspension or termination of the action. Consequently, the application by Yarra Trams to terminate or suspend the industrial action was dismissed.

KDR Victoria Pty Ltd T/A Yarra Trams

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established