Australian Federated Union of Locomotive Employees v Queensland Rail Transit Authority T/A Queensland Rail

[2024] FWC 856

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Federated Union of Locomotive Employees
v

Queensland Rail Transit Authority T/A Queensland Rail

(B2024/390)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 4 APRIL 2024

Proposed protected action ballot of employees of Queensland Rail Transit Authority Trading As Queensland Rail

This is an application by the Australian Federated Union of Locomotive Employees (AFULE) (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Queensland Rail Transit Authority T/A Queensland Rail (Employer). This matter is related to B2024/389.

On 2 April 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 Anthony Woodward, State President, AFULE, setting out the steps taken by the Applicant in bargaining with the Employer and that they have been, and are, genuinely trying to reach agreement with the Employer, 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.

Based on the Employer’s submissions and the terms of the agreement reached between the parties, I am satisfied that there are exceptional circumstances justifying the period of written notice being longer than 3 working days for the industrial action referred to in all of the ballot questions. Pursuant to s.443(5) of the Act, the period of written notice for the purposes of s414(2)(b) of the Act is 7 calendar days for the industrial action referred to in all of the ballot questions.

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 17 May 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 PR773146.

This matter will be assigned to another 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 involved 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] This is in effect 30 working days from the date of the order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Federated Union of Locomotive Employees (AFULE) applied to the Fair Work Commission (FWC) for a protected action ballot order concerning certain employees of the Queensland Rail Transit Authority (QRT). The FWC was asked to determine whether the conditions for a protected action ballot were satisfied, particularly regarding the notice period and the timing of the ballot. The QRT did not object to the application. Consequently, the Deputy President decided to resolve the matter based on the submitted documents without a hearing.

The legal issues the FWC addressed involved verifying whether the AFULE had genuinely attempted to negotiate with the QRT and if the requirements under section 443(1) of the Fair Work Act 2009 were met. The FWC also had to determine if there were exceptional circumstances justifying a longer notice period than the statutory minimum, and whether the proposed ballot period was reasonable.

The Deputy President concluded that the AFULE had genuinely attempted to negotiate and that all statutory requirements were fulfilled. Given the exceptional circumstances, the notice period was set at seven calendar days, exceeding the standard three working days. The closing date for the ballot was set at 17 May 2024, effectively 30 working days from the date of the order. The matter will be reassigned to another FWC member to conduct a compulsory conciliation conference, with directions to ensure meaningful negotiations.

In summary, the FWC granted the application for a protected action ballot order, setting a seven-day notice period and a ballot closing date of 17 May 2024. The matter will proceed to a compulsory conciliation conference to facilitate further negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established