Australian Rail, Tram and Bus Industry Union v KDR Gold Coast Pty Ltd T/A KDR Gold Coast

[2023] FWC 3109

[2023] FWC 3109

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Rail, Tram and Bus Industry Union
v

KDR Gold Coast Pty Ltd T/A KDR Gold Coast

(B2023/1293)

COMMISSIONER DURHAM BRISBANE, 27 NOVEMBER 2023

Proposed protected action ballot of employees of KDR Gold Coast Pty Ltd T/A KDR Gold Coast

1. This is an application by the Australian Rail, Tram and Bus Industry Union (RTBU) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of KDR Gold Coast Pty Ltd T/A KDR Gold Coast (KDR).

1. On 24 November 2023, the Commission was advised that KDR, in effect, did not object to the Application but objects to several questions raised in the proposed action and in addition sought an undertaking from the RTBU in relation to emergency situations where there is a risk to personal health and safety.

1. On 27 November 2023, the RTBU responded to KDR advising they do not believe it necessary to make further amendments to the draft orders. The RTBU confirmed they consent to the calendar day amendment of a seven (7) day notice period for protected action as discussed with KDR. Subsequently on the same day, KDR advised that they do not intend to pursue the remaining objections.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing, based on the revised draft order. 

1. On the basis of the material before me, including the declaration of Mr Tom Brown, Secretary, Tram & Bus Division, RTBU Qld Branch, 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 KDR, and I am satisfied all of the requirements in s.443(1) of the Act have been met.

1. The ballot is to be conducted by the uCommunication Pty Ltd T/A uComms (uComms). uComms has been approved as an eligible protected action ballot agent under s 468A of the Act[1] 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 13 December 2023.[2] 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) of the Act, justifying extended periods of written notice for the purposes of s.414(2)(b) of the Act when taking certain industrial action, as set out in the Order made by the Commission.

1. An Order has been separately issued in PR768681.

1. This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. To the extent that this matter involves any additional bargaining representatives, the Commission will also issue the Order requiring their 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.

COMMISISONER

[1] Application by uCommunications Pty Ltd T/A uComms [2023] FWC 1451.

[2] This date was specified in the proposed order and is, in effect, twelve (12) working days from the date of the Order.

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