Application by The Association of Professional Engineers, Scientists and Managers Australia

[2021] FWC 4997

[2021] FWC 4997

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Application by The Association of Professional Engineers, Scientists and Managers Australia
(B2021/659)

DEPUTY PRESIDENT BULL SYDNEY, 12 AUGUST 2021

Application for Protected Action Ballot Order for employees of Sydney Trains and NSW Trains T/A NSW TrainLink.

[1] The Association of Professional Engineers, Scientists and Managers Australia (APESMA) has filed an application pursuant to s.437 of the Fair Work Act 2009 (the Act) for a Protected Action Ballot Order (PABO) in relation to employees employed by Sydney Trains and NSW Trains (the respondents), in classifications covered by the:

•  Sydney Trains Enterprise Agreement 2018, 1 and

•  NSW Trains Enterprise Agreement 2018 2

(the Agreements)

[2] Section 438 of the Act prohibits a PABO application being made earlier than 30 days before the nominal expiry date of an enterprise agreement. As the Agreements have a nominal expiry date of 1 May 2021 and the application has been made subsequent to this date, the restriction under s.438 does not arise.

[3] The respondent employers are each covered by one of the above two enterprise agreements, whereas APESMA is covered by both Agreements, having given notice under s.183 of the Act that it wished to be covered by the Agreements.The Agreements contain for the most part, identical terms and conditions.

[4] APESMA in its application states that it wishes to bargain with the respondents for a single enterprise agreement on the basis that the respondents are single interest employers. In order for an agreement to cover both the respondents, the employers must qualify as single interest employers.

[5] A Form F34B Declaration in support of an application for a protected action ballot order completed by Adrian Catt – Organiser at APESMA, accompanied the application. Based on the facts as set out at 3.2 of the Form F34B Declaration, the Commission is satisfied that the respondents are single interest employers pursuant to s.172(5)(a) of the Act, in that they are employers engaged in a common enterprise and are capable of being covered by a single enterprise agreement.

[6] The Form F34B Declaration also set out the steps taken by APESMA said to demonstrate its attempts to genuinely try and reach an agreement with the respondents.

[7] The application set out the proposed questions to be asked of employees to be balloted and specifies as the proposed ballot agent, the Managing Director of Democratic Outcomes Pty Ltd trading as CiVS.

[8] On 10 August 2021, the Fair Work Commission (the Commission) wrote to the respondents, seeking responses to the application.

[9] On 11 August 2021, NSW Trains advised the Commission that it did not wish to be heard on the matter, however it may raise certain aspects of the PABO directly with APESMA.

[10] On the same day, Sydney Trains advised the Commission that “In issue in this application will be the notice period in respect of the various types of industrial action which will be the subject of the ballot. Extended periods of notice will be sought in accordance with s 443(5) of the Act.”

[11] On 12 August 2021, APESMA filed an amended Draft Order.

[12] On the same day, NSW Trains advised that it was content with the proposed amendments to the Draft Order. No extension to the notice period was sought by NSW Trains.

[13] Also on the same day, Sydney Trains advised that it had reached an agreement with APESMA in that it is appropriate that the Commission should be satisfied that there are exceptional circumstances justifying the extension of the notice periods for some forms of proposed industrial action in accordance with s443(5) of the Act. Sydney Trains also stated that if the extensions sought are included in the Order, it does not oppose the PABO being made.

[14] Sydney Trains further submitted that the periods of extension sought align with the extensions approved in the recent proceedings between the Australian Rail, Tram and Bus Industry Union and Sydney Trains. 3

[15] APESMA confirmed the agreement in relation to the extensions periods sought by Sydney Trains in an email to the Commission later that day.

[16] On the basis that the application has been consented to (on the above terms), the matter was dealt with on the papers.

[17] In this instance, after considering all of the material before me, I am satisfied that the application has been made in accordance with s.437 of the Act. Further, I am satisfied on the evidence of Mr Catt, that APESMA has been, and is, genuinely trying to reach an agreement with employees of the respondents who are to be balloted.

[18] I am also satisfied pursuant to s.443(5) of the Act, based on the agreement of APESMA and Sydney Trains, and for the reasons provided in matter [2021] FWC 4391, where relevant, that there are exceptional circumstances justifying the period of written notice being longer than 3 working days, and that the period of notice should be extended in the terms sought by Sydney Trains.

[19] The Commission is also satisfied as per s.444(1) of the Act, having regard to the declaration of Mr Michael, the Managing Director of Democratic Outcomes Pty Ltd trading as CiVS, that he is a fit and proper person to conduct the ballot.

[20] On the basis of the above, and pursuant to s.443(1) of the Act, a PABO [PR732801] based on the amended draft provided by APESMA will issue in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR732797>

 1   AE428119

 2   AE428I20

 3   B2021/455 – Application by Australian Rail, Tram and Bus Industry Union; See [2021] FWC 4391