Australian Rail, Tram and Bus Industry Union v Aurizon Bulk Central Pty Ltd

[2024] FWC 522

[2024] FWC 522

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Rail, Tram and Bus Industry Union
v

Aurizon Bulk Central Pty Ltd

(B2024/160)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 29 FEBRUARY 2024

Proposed protected action ballot of employees of Aurizon Bulk Central Pty Ltd

1. This is an application by the Australian Rail, Tram and Bus Industry Union (ARTBIU 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 Aurizon Bulk Central Pty Ltd (Aurizon or Employer).

1. On 27 February 2024, the Respondent raised an initial objection in relation to the form of the proposed ballot questions. The matter was subsequently listed to be heard on 29 February 2024. Prior to the hearing, the parties engaged in discussions and reached an agreement in relation to the ballot questions and related issues including the period of notice to take certain forms of industrial action.

1. In the circumstances, the hearing listed for 29 February 2024 was vacated, and I have determined the matter on the papers by reference to the amended draft orders, without holding a hearing. In so doing, I have also, following notice to the parties, permitted the ARTBIU to adjust one of the proposed ballot questions[1] to deal with a reservation raised by the Commission.

1. I also observe that ballot questions 1 and 2 may be problematic.[2] However, the parties have reached agreement on the questions, the ARTBIU presses for their inclusion, and there is no contest from the employer. Each application has to be determined in its own setting and the parties contend, in effect, that in the context of work of the nature undertaken here, the proposed questions meet the requirements of s.437(3)(b) of the Act to define the nature of the proposed industrial action. Whether this applies as a general rule is something that can be determined when required.

1. On the basis of the material before me, including the declaration of Mr Hayden Boyle, Branch Organiser at ARTBIU, setting out the steps taken by the Applicants in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Aurizon, 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.  

1. The ballot is to be conducted by the TrueVote Pty Ltd (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s 468A of the Act,^[3] 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 14 March 2024.[4] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking certain forms of the industrial action set out in the Order made by the Commission. The extended notice period of 5 working days applies to questions 1, 2 and 5. All other questions have the default 3 working day notice period.

1. An Order has been separately issued in PR771870.

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 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] Question 7.

[2] Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union[2017] FWCFB 44740 at [53].

[3] TrueVote Pty Ltd [2023] FWC 1446.

[4] This period was specified in the proposed order and is, in effect, fourteen (14) days from the date of effect of the Order.

Printed by authority of the Commonwealth Government Printer

<PR771871>