Australian Rail, Tram and Bus Industry Union v EDI Rail PPP Maintenance Pty Ltd

[2023] FWC 1882

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

EDI Rail PPP Maintenance Pty Ltd

(B2023/768)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 31 JULY 2023

Proposed protected action ballot of employees of EDI Rail PPP Maintenance 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 EDI Rail PPP Maintenance Pty Ltd (EDI or Employer).

On 31 July 2023, the Commission was advised that EDI, in effect, 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 Wayne Moody, RTBU Organiser, 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 EDI, 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 application and draft order named Michael M Michael as the proposed ballot agent. Mr Michael is the principal of 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] In the absence of any submissions or evidence relating to exceptional circumstances that would otherwise be required for a non-eligible agent to be approved to conduct the PABO under s.444(1D) of the Act, the Commission has taken the reference to Michael M Michael in Clause two of the draft order to be a reference to CiVS As a result, the ballot is to be conducted by CiVS which is authorised to conduct the ballot.

For the purposes of s.443(3)(c) and s.448A(2) of the Act, a ballot period of seven (7) working days from the date of the Order (31 July 2023) has been determined by the Commission.

An Order has been separately issued in PR764730.

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Rail, Tram and Bus Industry Union (RTBU) applied to the Fair Work Commission (FWC) for a protected action ballot order under section 437 of the Fair Work Act 2009 in relation to certain employees of EDI Rail PPP Maintenance Pty Ltd (EDI). EDI did not object to the application, leading the FWC to determine the matter on the papers without a hearing. The RTBU provided a declaration from Mr Wayne Moody, an RTBU Organiser, stating that the union had genuinely tried to reach an agreement with EDI and that a notification period existed for the proposed agreement. The FWC was satisfied that all requirements under section 443(1) of the Act had been met.

The legal issues before the FWC included whether the RTBU had genuinely tried to reach an agreement with EDI, whether a notification period existed for the proposed agreement, and whether all requirements under section 443(1) of the Act had been met. The FWC considered the declaration of Mr Moody and the lack of objection from EDI in determining that the RTBU had genuinely tried to reach an agreement with EDI and that a notification period existed for the proposed agreement. The FWC was also satisfied that all requirements under section 443(1) of the Act had been met.

The FWC determined that the ballot should be conducted by CiVS, an authorised ballot agent. The FWC set a ballot period of seven working days from the date of the order. The FWC also noted that another member of the Commission would conduct the compulsory conciliation conference and issue an order requiring attendance at the conference. Directions may also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

The FWC issued an order granting the RTBU's application for a protected action ballot order. The ballot period was set at seven working days from the date of the order. The FWC also noted that another member of the Commission would conduct the compulsory conciliation conference and issue an order requiring attendance at the conference. Directions may also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established