FWA stops vote

Australian Rail, Tram and Bus Industry Union v Australian Rail Track Corporation [2012] FWA 5779 (10 July 2012)

A company, which was frustrated with a small group of employees wanting a separate agreement from the entire workforce, decided to go ahead and ballot all employees, only to be thwarted by Fair Work Australia. The company wanted all its employees to be included in the enterprise agreement, but a small number of key employees held out, wanting their own (better) deal.

Their union supported the small group in this endeavour and so negotiations dragged on. Eventually the company decided to bypass the issue by setting up a ballot for the proposed, all-in, agreement. It was at this point that the union took the company to FWA and argued that FWA should issue a scope order, allowing the key employees to be dealt with separately.

FWA took the view that since the key employees had been agitating for a separate agreement from the start of negotiations, when the company decided to go to the ballot, they were in fact in breach of the good faith bargaining requirements of the legislation. Having made that finding, FWA decided to block the vote, requiring the company to seriously respond to the key employees’ request for  a separate agreement.

The case highlights the double-edged sword of the capacity of enterprise agreements to apply to distinct operational  or geographical business units. It means employees too can have a say on the way agreements are fundamentally structured in a workplace.