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

[2025] FWC 590

[2025] FWC 590

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Rail, Tram and Bus Industry Union
v

Keolis Downer Hunter Pty Ltd

(B2025/296)

COMMISSIONER CRAWFORD SYDNEY, 27 FEBRUARY 2025

Proposed protected action ballot of employees of Keolis Downer Hunter Pty Ltd – employer opposition – not genuinely trying to reach agreement – economic and safety concerns – questions not clear – request for extended notice period – opposition rejected – order made. 

BACKGROUND

1. This is an application by the Australian Rail, Tram and Bus Industry Union (RTBU) under s.437 of the Fair Work Act 2009 (FW Act) for a protected action ballot order in relation to certain employees of Keolis Downer Hunter Pty Ltd (KDH). KDH provides public bus transport services in Newcastle. The application was filed on 25 February 2025.

1. On 26 February 2025, the Commission was advised that KDH opposes the application. KDH outlined the following reasons for opposing the application:

1.The RTBU has not been, and is not, genuinely trying to reach agreement with KDH.

2.The order would cause significant harm to the business of KDH.

3.The order would result in excessive disruption to the Newcastle public transport system and will give rise to safety concerns, particularly in relation to vulnerable community members attempting to attend hospitals.

4.KDH’s approved external ballot vendor should conduct the ballot.

5.Two of the three ballot questions are not sufficiently clear.

6.An extended notice period for the industrial action should be required because of the essential services provided by KDH.  

1. Given KDH’s opposition, I listed the application for hearing at 8:30am on 27 February 2025 via video. 

1. Jemimah Cooper (Legal Officer) and Katie O’Neill (Industrial Officer) represented the RTBU at the hearing on 27 February 2025. KDH was represented by Will Treglown (Human Resources Business Partner), Daniel Collis (Operations Manager), and Brianna Musgrove (Human Resources Business Partner).

MATERIAL RELIED UPON

RTBU

1. In addition to its Form F34 application and an accompanying draft order, the RTBU relied on a Form F34B declaration made by Peter Grech (President, Tram and Bus Division) on 25 February 2025. Mr Grech’s declaration states:

a.KDH commenced bargaining with the RTBU in November 2024.

b.The parties have met around four times between November 2024 and 25 February 2025.

c.KDH has not agreed to the RTBU’s log of claims.

d.The RTBU has confirmed its willingness to continue meeting with KDH.

e.The RTBU is willing to provide further proposals to try and reach agreement with KDH.

1. I marked Mr Grech’s declaration Exhibit A1. Mr Grech was not required for cross-examination on his evidence.

1. The RTBU filed a written response to KDH’s objections on 27 February 2025. Ms Cooper made further oral submissions at the hearing.

KDH

1. KDH relied on its written outline of submissions dated 26 February 2024. Mr Treglown made further oral submissions at the hearing.

CONSIDERATION

Genuinely trying to reach agreement

1. The Full Bench in Esso[1] provided the following summary of the key authorities in terms of assessing whether an applicant is genuinely trying to reach agreement (endnotes omitted):

“[34] In Total Marine Services Pty Ltd v Maritime Union of Australia (Total Marine) the Full Bench upheld an appeal from a decision to grant an application for a protected action ballot. The Full Bench held that the member at first instance had erred in concluding that the applicant had genuinely tried to reach an agreement within the meaning of s.443(1)(b) in circumstances where certain claims were ‘put to one side’; the negotiations involved limited face to face meetings and limited articulation of many of the claims; many items were only set out in a list of headings, being neither explained nor discussed; and no wage claim was specified. In the course of its decision the Full Bench expressed the following views about s.443(1)(b):

‘[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.

[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.’

[35] For our part, for reasons we articulate later, we agree with the observations in paragraph [31] and the first three sentences of paragraph [32] of Total Marine, set out above. We note that the observations which follow the first three sentences in paragraph [32] are obiter and although we do not consider that they should be understood as attempting to establish any binding decision rule, nonetheless they are, with respect, somewhat inconsistent with the earlier expressed proposition (with which we agree) that it is not useful to articulate any alternative test or criteria to the words of s.443(1)(b). We note that similar reservations were expressed by the majority of the Full Bench in JJ Richards and Sons Pty Ltd v TWU (JJ Richards No.1) and by the Full Bench in Farstad Shipping (Indian Pacific) Pty Ltd v MUA (Farstad).”

1. The primary argument raised by KDH in relation to this objection is that the RTBU had only very recently articulated its financial claims for the proposed enterprise agreement. While I agree that additional progress may have been made with the bargaining process if the RTBU had provided its financial claims earlier, that is not the legal test for the making of a protected action ballot order. An allegation that an application is premature does not, in itself, provide a basis for concluding that the applicant for the order has not been, or is not, genuinely trying to reach agreement.[2]

1. In any event, the current enterprise agreement nominally expired around three months ago. It appears little progress has been made with bargaining. The RTBU had articulated its claims to KDH when it made the application on 25 February 2025, albeit seemingly on a staggered basis with financial claims only recently provided. I do not consider the application can be fairly described as premature in all the circumstances.

1. I am satisfied based on Mr Grech’s uncontested evidence that the RTBU has been, and is, genuinely trying to reach agreement with KDH.

Significant harm to KDH and safety concerns

1. I do not have sufficient evidence at this stage to properly consider the impact of the proposed protected industrial on KDH or the public. That is not a criticism of the case advanced by KDH. The making of a protected action ballot order is not the appropriate time to make these evidentiary assessments, much greater clarity about the nature and potential effect of the industrial action will emerge once written notice of any protected industrial action is provided.[3]

1. The FW Act provides mechanisms for the Commission to prevent significant economic harm and threats to safety due to protected industrial action. Those mechanisms are the making of orders under ss.423 to 430 of the FW Act. I do not consider economic impacts or safety threats generally arise for consideration in relation to a protected action ballot order. As Deputy President Hampton identified in UWU v Lineage Aus TRS Pty Limited[4], there is no “general discretion afforded to the Commission to refuse a ballot question … on safety grounds.”[5]

1. I do not consider the economic and safety concerns raised by KDH prevent the making of a protected action ballot order in this case.

Ballot agent

1. It appears KDH’s submissions argue an external provider that the business has engaged to conduct votes for enterprise agreements should conduct the proposed protected action ballot. The point was not advanced by Mr Treglown during the hearing.

1. The ballot is to be conducted by TrueVote Pty Ltd (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s.468A of the FW Act[6] and consequently is authorised to conduct the ballot.

Clarity of the questions

1. KDH raised concerns about the following two questions which asked whether the relevant employees support “taking separately, concurrently and/or consecutively any or all of the actions set out below:

…

“Bans, limitations or restrictions on the manner in which Employees undertake work or accept work.”

and

“Changes to the way that Employees perform work that results in a delay, restriction, or limitation in the performance of work.”

1. The questions proposed by the RTBU “must describe the industrial action in such a way that employees are capable of responding to them.”[7] 

1. I am satisfied that this test has been met in relation to the questions proposed by the RTBU. I consider the questions identified by KDH are relatively standard descriptions of partial work bans. I had no difficulty understanding the questions and consider they are sufficiently clear that employees will be capable of responding to them.

Extended notice period

1. The Commission has a discretion to extend the minimum notice period for industrial action if it is satisfied that there are exceptional circumstances justifying a longer notice period.[8] The determination of whether the circumstances in a particular case are exceptional involves an evaluative judgment and must be based on findings of fact about the circumstances that are said to be exceptional.[9]  

1. KDH did not lead any evidence concerning any exceptional circumstances that justify a longer notice period for the industrial action. KDH also did not seek a further opportunity to lead evidence on this issue during the hearing. In any event, I would have been reluctant to provide KDH with any further opportunity given the statutory requirement to determine these applications within two working days as far as practicable.[10] Given this provision, I consider employers wanting to seek a longer notice period should generally urgently file evidence in support of their request so that the application can still be determined within two working days.  

1. I determine the minimum notice period for the protected industrial action will be three working days.

Other matters

1. I am satisfied that there is a notification time in relation to the proposed agreement and that all the other requirements in s.443(1) of the FW Act have been met

1. For the purposes of s.443(3)(c) and s.448A(2) of the FW Act, I have determined the date by which voting closes for the ballot will be 14 working days from the date of this Order which is 19 March 2025. This was the date proposed by the RTBU.

1. An order has been separately issued in [PR784801].

1. This matter will be assigned to a Member of the Commission to conduct the s.448A 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.

COMMISSIONER

Appearances:
Ms J Cooper and Ms K O’Neill for the RTBU.
Mr W Treglown, Mr D Collis and Ms B Musgrove on behalf of KDH.

Hearing:

2025.
Sydney (via video using Microsoft Teams).
27 February.

[1] Esso Australia Pty Ltd v AMWU, CEPU and RTBU [2015] FWCFB 210.

[2] Kuiper Australia Pty Ltd v The Australian Workers’ Union [2024] FWCFB 378 at [34].

[3] Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union [2017] FWCFB 4740 at [44].

[4] [2024] FWC 657.

[5] Ibid at [6].

[6] TrueVote Pty Ltd [2023] FWC 1446.

[7] John Holland Pty Ltd v AMWU [2010] FWAFB 526 at [19]..

[8] Section 443(5) of the FW Act.

[9] National Tertiary Education Industry Union v Charles Darwin University [2018] FWCFB 4011 at [23].

[10] Section 441(1) of the FW Act.

Printed by authority of the Commonwealth Government Printer

<PR784800>