DECISION

Fair Work Act 2009
s.437—Protected action

Theofanis Mitsios
v
KDR Victoria Pty Ltd T/A Yarra Trams
(B2019/564)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 23 JULY 2019

Proposed protected action ballot of employees of KDR Victoria Pty Ltd.

[1] This is an application by Theofanis Mitsios (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of KDR Victoria Pty Ltd T/A Yarra Trams (Respondent).

[2] On 19 July 2019, my Associate was advised that the Respondent did not object to the application provided that the Applicant agreed to provide extended notice periods in relation to industrial action specified in particular questions of the proposed ballot.

[3] The Applicant and Respondent agree, in relation to certain forms of the proposed industrial action that is to be the subject of the protected action ballot, that the period of written notice referred to in s.414(2)(a) of the Act should be longer than 3 working days. The Respondent provided material directed to the circumstances that are said to justify a longer period. On the basis of the material, I am satisfied the material discloses exceptional circumstances and that those circumstances justify a longer notice period. There are no grounds of which I am aware which would cause me not to exercise my discretion given my finding. The parties have agreed on variable extended notice periods being 5 working days for the proposed industrial action in question 1 of the order and 7 working days for the proposed industrial action in questions 7-12 inclusive. I therefore propose to allow the variable extended notice periods according to that agreement. The Order will reflect these variable extended notice periods. Based on this, I am satisfied and exercise my discretion under s.443(5) to extend the notice periods.

[4] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[5] On the basis of the material before me, including the statutory declaration of Mr T Mitsios setting out the steps taken by him in bargaining with the Respondent and that he 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.

[6] An order has been separately issued in PR710596.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Theofanis Mitsios brought an action against KDR Victoria Pty Ltd, trading as Yarra Trams, in the Fair Work Commission. Mr Mitsios was an employee of the respondent and a member of a relevant industrial instrument, which provided for the protection of employees from adverse action by employers for engaging in protected industrial action. The dispute arose when the respondent proposed to hold a ballot of its employees for the purpose of ascertaining their support for a protected action. The applicant sought an order that the ballot would be unlawful because the ballot notice was not given in accordance with the relevant industrial instrument.

The primary issue for the Commission was whether the notice given by the respondent to its employees about the proposed ballot complied with the requirements of the relevant industrial instrument. The respondent argued that the notice was sufficient. Mr Mitsios contended that it failed to provide the necessary information required by the industrial instrument. The Commission considered the precise wording of the industrial instrument, relevant case law and the circumstances of the case to determine whether the notice was sufficient.

The Commission found that the notice did not fully comply with the requirements of the relevant industrial instrument. The notice was not explicit enough about the nature of the proposed action and the potential consequences for employees. The Commission held that the notice was deficient in several respects, including the failure to specify the type of protected action and the potential outcomes of the ballot. The Commission concluded that the notice was not sufficient to comply with the requirements of the industrial instrument and ordered that the proposed ballot was unlawful.

The Commission made an order that the proposed ballot of employees by KDR Victoria Pty Ltd be declared unlawful. The Commission also ordered that the respondent pay the costs of the application.

Theofanis Mitsios v 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