Fair Work Commission|2026-01-09

Australian Rail, Tram and Bus Industry Union v Aurizon Operations Limited and Interail Australia Pty Ltd [2026] FWC 50 (9 January 2026)

s.437 - Application for a protected action ballot order

Aurizon Operations Limited and Interail Australia Pty Ltd

Proposed protected action ballot of employees of Aurizon Operations Limited and Interail Australia Pty Ltd - non-AEC ballot agent electronic voting

[1] This is an application by the Australian Rail, Tram and Bus Industry Union (RTBU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Aurizon Operations Limited (Aurizon) and Interail Australia Pty Ltd (Interail) (collectively, the Employers).

[2] On 8 January 2026, the Commission was advised that the parties had reached a consent position in relation to the inclusion of an extended notice period for taking protected industrial action.

[3] In the circumstances, I have decided to amend the application to reflect the consent position reached and otherwise determined the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Jarrod Tickle, Organiser/Assistant Secretary, setting out the steps taken by the RTBU in bargaining with the Employers and that it has been, and is, genuinely trying to reach agreement with them, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

[5] The ballot is to be conducted by Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

[6] Section 443(3)(c) of the Act requires the Commission to specify a date in the protected action ballot order by which voting in the protected action ballot closes. For the purpose of this provision, s.443(3A) requires the Commission to specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

[7] The RTBU has proposed that the ballot close seven working days after the order is made. As one of the matters which is relevant to the exercise of the Commission's discretion under s.443(3A) includes the requirements in relation to conducting a conference pursuant to s.448A,[1] I proposed to the parties that the ballot period will be ten working days.

[8] The RTBU provided submissions both before and after I expressed this preliminary view about the ballot period. The RTBU has confirmed with the ballot agent that it is able to conduct the ballot within the proposed timeframe. The RTBU submitted that the ballot will be conducted electronically and that the proposed ballot period will provide sufficient time for the Employers and the RTBU to provide a list of eligible members or employees to the ballot agent and for as many eligible employees to vote in the ballot, particularly in the context that some of the employees to be balloted, also work on weekends. The RTBU also submitted that it will be available to attend a s.448A conference at short notice and that all parties in this matter are experienced industrial parties who can comply with directions of the Commission, in a shortened timeframe, in relation to the filing of any material prior to any Conference. The RTBU noted that the Commission has approved multiple PABOs where the ballot period was seven working days.

[9] The Employers did not oppose a ten working day ballot period and submitted that it would enable employees a greater opportunity to participate in the ballot, including employees who may be on leave over the ballot period.

[10] In Transport Workers' Union of Australia v Veolia Environmental Services (Australia) Pty Ltd,[2] I made a protected action ballot order with a five working day ballot period in the context of the relevant employer having asked employees to vote in relation to the agreement and the relevant applicant submitting that a longer ballot period would prejudice the bargaining position of the workforce.

[11] There is no requirement that an applicant for a protected action ballot order establish prejudice as a precondition for proposing a particular ballot period. However, in my view, the impact on the parties of the ballot period (including any adverse impact) is a relevant consideration, along with the other matters referred to in the Full Bench decision of CEPU v Nilsen (NSW) Pty Ltd which include:

• the size of the voting group,[3]
• the capacity of the ballot agent and the capacity of the employer and bargaining representatives to provide the ballot agent with the details of employees to be balloted,[4]
• the views of the employer,[5]
• the location of the group of employees, their rosters or work patterns, the nature of the work they are performing, their access to the internet or telephone services and the method by which the ballot will be conducted,[6] and
• the requirements in relation to conducting conferences pursuant to s.448A.[7]

[12] I have taken all of these matters into consideration, the submissions of the parties and that there is no evidence before me of any adverse impact on the RTBU or its members if the ballot period is ten working days rather than seven working days. I have determined that for the purposes of s.443(3)(c) of the Act, the date by which voting is to close is 23 January 2026.[8] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

[13] I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. The minimum extended notice period of five (5) working days applies to the items listed within Clause 5 of the Order.

[15] This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

[1] CEPU v Nilsen (NSW) Pty Ltd [2023] FWCFB 134, [66].

[8] This is, in effect, 10 working days from the making of the Order.

Printed by authority of the Commonwealth Government Printer

Australian Rail, Tram and Bus Industry Union v Aurizon Operations Limited and Interail Australia Pty Ltd [2026] FWC 50