Association of Professional Engineers, Scientists and Managers, Australia, The v Metro Trains Melbourne Pty Ltd

[2016] FWC 2329

[2016] FWC 2329

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Association of Professional Engineers, Scientists and Managers, Australia, The
v
Metro Trains Melbourne Pty Ltd
(B2016/62)

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 Association of Professional Engineers, Scientists and Managers, 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.

(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 12 April 2016, my Chambers was advised by the Applicant that the Union had omitted to include in the draft order filed, an extension of the period of notice under s.414 of the Act from a period of 3 working days to a period of 5 working days, and subsequently filed an amended draft order reflecting this.

[4] On 12 April 2016, my Chambers was advised on behalf of the Respondent that it did not object to the application, on the understanding that the Applicant seeks at least 5 working days’ notice of industrial action.

[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 13 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 Tom Fooks, Industrial Officer/Organiser, The Association of Professional Engineers, Scientists and Managers, 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.

[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 [PR579022] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR579021>