To be protected you need to be genuinely trying

The parties (John Holland Rail Pty. Ltd, The Australian Rail, Tram and Bus Industry Union and the Australian Workers’ Union) were engaged in enterprise agreement negotiations for a single agreement to replace three existing agreements over approximately 12 months. The employer eventually put a proposed agreement to employees to vote upon and employees voted against the agreement. The employer asked the union to provide information about the reasons employees had voted against the agreement, which the union refused to provide. The employer then sought information from the union about what it was seeking in relation to three replacement agreements, after it was advised that employees were not prepared to ‘roll over’ the existing agreements.

The union sought protected action ballot orders in relation to the three replacement agreements. FWA refused the applications, finding that they were premature. While negotiations had been ongoing for some time, FWA was not satisfied that the union was genuinely trying to reach agreement in relation to the three new ‘proposed agreements’ because it had not articulated its claims to the employer in relation to those agreements. The case highlights that the requirement that parties are ‘genuinely trying to reach agreement’ applies in relation to each ‘proposed agreement’ a party seeks to make.

John Holland Case 2009