Australian Rail, Tram and Bus Industry Union v Bowen Rail Company Pty Ltd T/A Bowen Rail

[2024] FWC 2845

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Rail, Tram and Bus Industry Union
v

Bowen Rail Company Pty Ltd T/A Bowen Rail

(B2024/1334)

DEPUTY PRESIDENT LAKE

BRISBANE, 14 OCTOBER 2024

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

This is an application by the Australian Rail, Tram and Bus Industry Union (the ARTBIU) 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 ARTBIU have taken steps during bargaining to genuinely try to reach agreement as set out by a declaration from Joshua Leslie Colin Bourne, Organiser for the ARTBIU. 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 PR780185.

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

In the Fair Work Commission, the Australian Rail, Tram and Bus Industry Union (ARTBIU) applied for an order under section 437 of the Fair Work Act 2009 for a ballot of certain employees of Bowen Rail Company Pty Ltd Trading As Bowen Rail. The purpose of the ballot was to seek approval for protected action, likely involving industrial action such as a strike or lock-out. Bowen Rail Company did not object to the application, allowing the Deputy President to determine the matter on the basis of the submitted documents without a hearing. The case revolves around the procedural requirements for holding a protected action ballot, including the notification period and the involvement of the Australian Electoral Commission.

The legal issues before the Deputy President involved verifying whether the ARTBIU had genuinely attempted to reach an agreement during the bargaining process and ensuring that all statutory requirements were met for the proposed protected action ballot. The Deputy President had to confirm that the union had fulfilled its obligations under the Fair Work Act, including the notification period and the involvement of the Australian Electoral Commission in conducting the ballot. Additionally, the Deputy President needed to determine an appropriate closing date for the voting process, ensuring it complied with the statutory time frames.

After reviewing the material provided, Deputy President Lake concluded that the ARTBIU had indeed made genuine efforts to reach an agreement, as evidenced by the declaration from Joshua Leslie Colin Bourne, the Organiser for the ARTBIU. The Deputy President also found that all statutory requirements had been satisfied, including the notification period and the procedural aspects of the ballot. The Deputy President set the closing date for the ballot as 13 November 2024, which is effectively 30 working days from the date of the order, aligning with the date sought by the union. Consequently, an Order was issued for the ballot to proceed, and the Deputy President scheduled a compulsory conciliation conference to be conducted under section 448A of the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established