Australian Rail, Tram and Bus Industry Union v Keolis Downer Adelaide Pty Ltd Summary

[2024] FWC 593

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

Keolis Downer Adelaide Pty Ltd

(B2024/183)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 6 MARCH 2024

Proposed protected action ballot of employees of Keolis Downer Adealide Pty Ltd

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 Keolis Downer Adelaide Pty Ltd (Keolis or Employer).

On 5 March 2024, the Commission was advised that Keolis did not object to the Application as amended to reflect a period of extended notice of industrial action.

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 Hayden Boyle, Branch Organiser, setting out the steps taken by the ARTBIU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with them, 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 TrueVote Pty Ltd (TrueVote). TrueVote 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.

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 26 March 2024.[2] This also established the ballot period for the purpose of s.448A(2) of the Act.

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 industrial action set out in the Order made by the Commission. The extended notice period of 5 working days applies to the items listed within Clause five (5) of the Order.

An order has been separately issued in PR772088.

This matter will be assigned to another 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] TrueVote Pty Ltd [2023] FWC 1446.

[2] This is, in effect, 14 days from the date the ballot opens, as sought in the application. I note the ballot opens approximately three working days after the date of the Order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application from the Australian Rail, Tram and Bus Industry Union (ARTBIU) for a protected action ballot order against Keolis Downer Adelaide Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, seeking authorisation for the union to conduct a ballot of its members regarding potential industrial action. Keolis did not object to the application, allowing the matter to proceed on the papers without a hearing.

The legal issues before the Commission involved determining whether the union had met the requirements of section 443 of the Act to hold a ballot. Specifically, the Commission had to ascertain if the union had genuinely attempted to negotiate with the employer, if the ballot was necessary, and if there were exceptional circumstances justifying an extended notice period for the industrial action. The union argued that it had been in genuine negotiations with the employer but had not reached an agreement, thereby warranting the ballot. The employer's lack of objection supported the union's position that the ballot was necessary.

The Deputy President was satisfied that the union had genuinely attempted to negotiate with the employer, as evidenced by the declaration of Mr Hayden Boyle, Branch Organiser for ARTBIU. The President also found that exceptional circumstances existed, justifying an extended period of notice for the industrial action. The Commission determined that the ballot would be conducted by TrueVote Pty Ltd, an approved agent under section 468A of the Act. The closing date for voting was set as 26 March 2024, establishing the ballot period. Additionally, the Commission ruled that an extended notice period of 5 working days applied to specific items outlined in Clause five of the Order.

In summary, the Fair Work Commission granted the union's application for a protected action ballot order, subject to the specified conditions and timelines. The matter was referred for a compulsory conciliation conference to facilitate further negotiations between the parties.

Australian Rail, Tram and Bus Industry Union v Keolis Downer Adelaide Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established