Australian Federated Union of Locomotive Employees v Bowen Rail Company Pty Ltd T/A Bowen Rail

[2024] FWC 3334

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Federated Union of Locomotive Employees
v

Bowen Rail Company Pty Ltd T/A Bowen Rail

(B2024/1565)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 2 DECEMBER 2024

Proposed protected action ballot of employees of Bowen Rail Company Pty Ltd T/A Bowen Rail

This is an application by the Australian Federated Union of Locomotive Employees (AFULE 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 Bowen Rail Company Pty Ltd trading as Bowen Rail (Bowen Rail or Employer).

I note that the Australian Rail, Tram and Bus Industry Union (ARTBIU)[1] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 29 November 2024, the Commission was advised that the Employer, in effect, did not object to the Application.

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

On the basis of the material before me, including the declaration of Thomas James O’Rourke, Organiser, setting out the steps taken by the AFULE in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Bowen Rail, 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.

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.

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 16 December 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR781887.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. 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.

DEPUTY PRESIDENT

[1] B2024/1563.

[2] This is, in effect, 10 working days from the making of the Order and was the period sought by the parties.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the Australian Federated Union of Locomotive Employees (AFULE) seeking a protected action ballot order in relation to employees of Bowen Rail Company Pty Ltd T/A Bowen Rail. The AFULE aimed to conduct a ballot to determine the employees' support for protected action, as permitted under section 437 of the Fair Work Act 2009. Bowen Rail did not object to the application, and the Australian Rail, Tram and Bus Industry Union had made a separate application concerning the same enterprise agreement. The Commission decided to determine the matter based on the submitted documentation without a hearing.

The legal issues at hand revolved around whether the AFULE had fulfilled all requirements under section 443(1) of the Act, including demonstrating a notification period for the proposed agreement and proving that it had genuinely attempted to reach an agreement with Bowen Rail. Additionally, the Commission had to ascertain if Fair Vote Services Pty Ltd, the designated ballot agent, was approved and authorised to conduct the ballot under section 468A of the Act. Furthermore, the Commission needed to determine the closing date for voting, which would also serve as the ballot period for the purposes of section 448A(2) of the Act.

Upon reviewing the declaration by Thomas James O’Rourke, the Organiser of the AFULE, who detailed the union's bargaining efforts with Bowen Rail, the Deputy President Hampton concluded that all the statutory requirements had been met. The declaration indicated that the union had been genuinely attempting to reach an agreement and that a notification period was in place. Given Bowen Rail's lack of objection and Fair Vote's approval as a ballot agent, the Commission granted the application. The Deputy President set 16 December 2024 as the closing date for voting, which also established the ballot period. The matter was assigned to another Commission member to oversee a compulsory conciliation conference, ensuring the parties were prepared for meaningful negotiations.

An Order was issued separately in PR781887, and the matter was reassigned to another Commission member for the compulsory conciliation conference, along with the related matter. This member would issue an Order mandating the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. The Commission also planned to issue directions to ensure the parties were ready for meaningful negotiations at the conference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established