Australian Federated Union of Locomotive Employees v Bowen Rail Company Pty Ltd Summary

[2024] FWC 2842

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Federated Union of Locomotive Employees
v

Bowen Rail Company Pty Ltd

(B2024/1320)

DEPUTY PRESIDENT LAKE

BRISBANE, 14 OCTOBER 2024

Proposed protected action ballot of employees of Bowen Rail Company Pty Ltd

This is an application by the Australian Federated Union of Locomotive Employees (the AFULE) 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 (Bowen).

On 14 October 2024, the Commission was advised that the Employer 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 material before me, I am satisfied that the AFULE have taken steps during bargaining to genuinely try to reach agreement as set out by a declaration from Thomas James O’Rourke, Organiser for the AFULE. I am satisfied that there is a notification time in relation to the proposed agreement and that all the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Australian Electoral Commission.

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 13 November 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR780177.

I will conduct the s.448A compulsory conciliation conference and issue the Order requiring attendance for conference.

DEPUTY PRESIDENT

[1] This is, in effect, 30 working days from the making of the Order and was the date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Federated Union of Locomotive Employees (AFULE) made an application to the Fair Work Commission under section 437 of the Fair Work Act 2009, seeking a protected action ballot order in relation to certain employees of Bowen Rail Company Pty Ltd. The AFULE sought the ballot as part of their industrial action process, intending to ensure that the employees could vote on the proposed action. Bowen Rail Company Pty Ltd did not object to the application, and the Commission proceeded to determine the matter based on the submitted documents without a hearing.

The primary legal issue for the Fair Work Commission to decide was whether the AFULE had taken sufficient steps during bargaining to genuinely try to reach an agreement, as required by section 443(1) of the Fair Work Act. Additionally, the Commission needed to determine if the notification time for the proposed agreement was appropriate and if all the necessary requirements under section 443 of the Act had been fulfilled. The evidence provided by Thomas James O'Rourke, Organiser for the AFULE, was pivotal in establishing these points.

After reviewing the material presented, the Deputy President Lake found that the AFULE had indeed taken genuine steps to reach an agreement, as evidenced by the declaration from the Organiser. The Deputy President also confirmed that the notification time for the proposed agreement was sufficient and that all requirements under the Act had been met. Consequently, the Commission decided to grant the ballot order. The Australian Electoral Commission would conduct the ballot, with voting to close on 13 November 2024, effectively 30 working days from the issuance of the order. The Deputy President also scheduled a compulsory conciliation conference under section 448A of the Act and issued an order for the parties to attend.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established