Australian Rail, Tram and Bus Industry Union v Busways North West Pty Ltd T/A Busways Summary

[2023] FWC 1808

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

Busways North West Pty Ltd T/A Busways

(B2023/739)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 25 JULY 2023

Proposed protected action ballot of employees of Busways North West Pty Ltd

This is an application by the Australian Rail, Tram and Bus Industry Union (RTBU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Busways North West Pty Ltd (Busways or Employer).

On 25 July 2023, the Commission was advised that Busways 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 Mr David Babineau, RTBU Division Secretary, setting out the steps taken by the RTBU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Busways, 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 Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has recently been approved as an eligible protected action ballot agent under s 468A of the Act[1] and consequently is authorised to conduct the ballot. For the purposes of s.443(3)(c) and s.448A(2) of the Act, and following consultation with the parties,[2] a ballot period of ten (10) working days from the date of the Order (25 July 2023) has been determined by the Commission.

An Order has been separately issued in PR764509.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference and this Member will issue the Order requiring attendance 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] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[2] The parties were provided an opportunity to raise concerns in relation to the proposed ballot period. No submissions were provided to the Commission.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Rail, Tram and Bus Industry Union (RTBU) made an application to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to employees of Busways North West Pty Ltd (Busways). Busways did not object to the application, leading to the Commission deciding to determine the matter on the papers without a hearing. The central issue was whether the RTBU had satisfied the requirements of section 443(1) of the Act by demonstrating that it had genuinely attempted to reach an agreement with Busways and that a notification period for the proposed agreement existed.

The Deputy President Hampton reviewed the declaration of Mr David Babineau, the RTBU Division Secretary, which detailed the union's bargaining efforts with Busways. Based on this declaration and the absence of objections from Busways, the Deputy President concluded that all conditions under section 443(1) of the Act had been met. Additionally, the Commission authorised the Democratic Outcomes Pty Ltd T/A CiVS (CiVS) to conduct the ballot, as it had recently been approved as a ballot agent under section 468A of the Act. A ballot period of ten working days from the date of the Order was set, and the matter was assigned to another Commission member for the compulsory conciliation conference.

The decision resulted in the grant of the protected action ballot order, allowing the RTBU to proceed with the ballot among Busways' employees. The Commission also determined that a compulsory conciliation conference would be held, with directions issued to ensure meaningful negotiations between the parties. This ruling ensures that the union's efforts to reach an agreement and the procedural requirements of the Fair Work Act are respected and followed.

Australian Rail, Tram and Bus Industry Union v Busways North West Pty Ltd T/A Busways

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established