Association of Professional Engineers, Scientists and Managers, Australia, The v Sydney Trains, NSW Trains

[2024] FWC 2402

[2024] FWC 2402

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Association of Professional Engineers, Scientists and Managers, Australia, The
v

Sydney Trains, NSW Trains

(B2024/1128)

COMMISSIONER CRAWFORD SYDNEY, 4 SEPTEMBER 2024

Proposed protected action ballot of employees of Sydney Trains and NSW Trains

1. This is an application by The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) made under s.437 of the Fair Work Act 2009 (FWAct) for a protected action ballot order in relation to certain employees of Sydney Trains and NSW Trains (Employers).

1. I listed the application for hearing on 3 September 2024 via video because the Commission had been advised the parties were negotiating about some potential amendments to the proposed order.

1. During the hearing, the Employers sought clarification that the application was being made in relation to a proposed single-enterprise agreement and not a multi-enterprise agreement. The Employers referred to the Australian Rail, Tram and Bus Industry Union (RTBU) having made an application for a single interest employer authorisation which is proposed to include the Employers. APESMA’s response was that it had made a valid application for a protected action ballot order.

1. I informed the parties at the end of the hearing that I had determined APESMA’s application has been made in relation to a proposed single-enterprise agreement that it has been negotiating with the Employers. There has not been a “notification time” for a single interest employer authorisation within the meaning of s.173(2)(e) of the FW Act. Section 437(2A) precludes the making of an application for a protected action ballot order if there has not been a notification time for the proposed enterprise agreement. There is also no reference in APESMA’s application, or the supporting declaration made by Adrian Catt (Lead Organiser), to a multi-enterprise agreement. Mr Catt has provided evidence about claims made against the Employers and about meetings with the Employers to discuss those claims. This is all consistent with the application relating to a proposed single-enterprise agreement.

1. With that issue having been determined, the parties indicated they would finalise their negotiations about potential amendments to the proposed order and advise the Commission of the outcome.    

1. On 4 September 2024, the Commission was advised that APESMA and the Employers had effectively reached a consent position in relation to the application. At a high level, APESMA agreed to some modifications to the proposed questions to address the Employers’ safety concerns and APESMA agreed not to oppose the Employers’ request for a longer written notice period of seven working days for employee claim action. Given these concessions, the Employers did not oppose the application.

1. In the circumstances, I have decided to determine the matter on the papers without holding a further hearing.

1. APESMA has provided uncontested evidence via a declaration from Mr Catt which sets out the steps taken by APESMA in bargaining with the Employers and provides evidence that APESMA has been, and is, genuinely trying to reach agreement with the Employers.

1. 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 FW Act have been met.

1. The ballot is to be conducted by Democratic Outcomes Pty Ltd t/as CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

1. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 24 September 2024. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. I am satisfied that there are exceptional circumstances that justify a longer written notice period of seven working days in accordance with s.443(5) of the FW Act.

1. An Order has been separately issued in PR778966.

1. This matter will be assigned to a 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.

COMMISSIONER

Determined on the papers.

Printed by authority of the Commonwealth Government Printer

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