Australian Federated Union of Locomotive Employees v Central Queensland Services Pty Ltd T/A BMA

[2024] FWC 1398

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Federated Union of Locomotive Employees
v

Central Queensland Services Pty Ltd T/A BMA

(B2024/696)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 29 MAY 2024

Proposed protected action ballot of employees of Central Queensland Services Pty Ltd

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 Central Queensland Services Pty Ltd T/A BMA (BMA or Employer).

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

On 28 May 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 basis of the material before me, including the declaration of Thomas 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 an agreement with it, 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 the Australian Electoral Commission (AEC).

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 10 July 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 PR775429.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matters. 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] B2024/694, B2024/702.

[2] This is, in effect, 30 working days from the making of the Order, as required by the AEC.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has determined an application by the Australian Federated Union of Locomotive Employees (AFULE) for a protected action ballot order concerning certain employees of Central Queensland Services Pty Ltd T/A BMA (BMA). The application was made under section 437 of the Fair Work Act 2009. The AFULE sought the order in relation to a proposed enterprise agreement, which was also the subject of applications by the Australian Rail, Tram and Bus Industry Union and the Mining and Energy Union. The employer did not object to the AFULE's application. The Commission decided to determine the matter on the papers without a hearing, satisfied by the evidence provided that all requirements under section 443(1) of the Act had been met.

The legal issues before the Commission were whether the notification time for the proposed agreement had been met and whether the AFULE had genuinely tried to reach an agreement with the employer. The evidence included a declaration from Thomas O’Rourke, Organiser for the AFULE, detailing the steps taken in bargaining and demonstrating the union's genuine efforts to reach an agreement. The Commission found that the notification time requirement was met and that the union had indeed made genuine efforts to negotiate. Consequently, the Commission granted the AFULE's application and ordered that the ballot be conducted by the Australian Electoral Commission, with voting to close on 10 July 2024.

The decision also established the date for a compulsory conciliation conference to be held by another Member of the Commission, along with related matters. This conference is intended to facilitate meaningful negotiations between the parties, with an expectation that directions will be issued to ensure the parties attend prepared to negotiate. The decision reflects the Commission's role in ensuring that protected action ballot processes are conducted lawfully and fairly, while also supporting the resolution of workplace disputes through conciliation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established