Application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2016] FWC 2328

[2016] FWC 2328

DECISION

Fair Work Act 2009

s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal,

Plumbing and Allied Services Union of Australia

v

Metro Trains Melbourne Pty Ltd

(B2016/440)

COMMISSIONER LEE SYDNEY, 13 APRIL 2016

Proposed protected action ballot of employees of Metro Trains Melbourne Pty Ltd.

[1]        This matter involves an application by the Communications, Electrical, Electronic,

Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant)

for a protected action ballot order in relation to certain employees of Metro Trains Melbourne

Pty Ltd (the Respondent), pursuant to section 437 of the Fair Work Act 2009 (the Act).

[2]        Section 443(1) of the Act states:

“(1) The FWC must make a protected action ballot order in relation to a proposed

enterprise agreement if:

(a)	an application has been made under section 437; and
(b)	the FWC is satisfied that each applicant has been, and is, genuinely

trying to reach an agreement with the employer of the employees who are to be

balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed

enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted,

including the nature of the proposed industrial action.

[2016] FWC 2328

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will

enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is

to be the protected action ballot agent for the protected action ballot, the protected

action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the

protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be

the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the

subject of the protected action ballot, that there are exceptional circumstances

justifying the period of written notice referred to in paragraph 414(2)(a) being longer

than 3 working days, the protected action ballot order may specify a longer period of

up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for

a proposed enterprise agreement, a bargaining representative of an employee who will

be covered by the agreement must give written notice of the action to the employer of

the employee.”

[3]        On 8 April 2016, the Applicant advised the Fair Work Commission (the Commission)

that the Union consented to an extension of the period of notice under s.414 (2)(a) of the Act

from a period of 3 working days to a period of 5 days and subsequently filed an amended

draft order reflecting this position.

[4]        On 11 April 2016, my Chambers was advised by the Respondent that it did not object

to the application.

[5]        The Respondent submits that, pursuant to s.443 (5) of the Act, the Commission should

exercise its discretion to extend the period of notice referred to in s.414 (2)(a) of the Act to a

period of 5 working days.

[6]        I am satisfied, based on Respondent’s outline of submissions filed on 12 April 2016,

that there are exceptional circumstances to justify an extension of the notice period specified

in s.414 (2)(a) of the Act to 5 working days.

[7]        The Applicant lodged a statutory declaration of Mr Gerald Leslie Glover, Branch

Officer, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and

Allied Services Union of Australia, addressing the requirements of the Act.

[8]        In particular, I note I am satisfied that the requirements of section 443 of the Act have

been met, that the Applicant has been and is genuinely trying to reach an agreement with the

Respondent and that the draft order meets the requirements of section 443(3) of the Act. The

Australian Electoral Commission is to be the protected action ballot agent.

[2016] FWC 2328

[9]        As I am satisfied that the requirements of the Act have been met, pursuant to section

443 of the Act, the Order must be made. The Order [PR579020] will be issued concurrently

with this decision.

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