Australian Rail, Tram and Bus Industry Union v Pacific National Executive Services Pty Ltd T/A Pacific National

[2023] FWC 2314

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

Pacific National Executive Services Pty Ltd T/A Pacific National

(B2023/967)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 12 SEPTEMBER 2023

Proposed protected action ballot of employees of Pacific National Executive Services Pty Ltd

This is an application by the Australia 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 Pacific National Executives Services Pty Ltd (Pacific National or Employer).
On 11 September 2023, the Commission was advised that Pacific National did not object to the application but wished to be heard in relation to the period of notice required for employee claim action and the ballot period. Accordingly, I issued directions in relation to the filing and serving of material and listed the matter for hearing. Late on 11 September 2023, Pacific National advised my Chambers that the parties had reached a consent position in relation to the matter and requested that the hearing be vacated.

In the circumstances, I have vacated the hearing and decided to determine the matter on the papers.

On the basis of the material before me, including the declaration of Ms Amanda Perkins, 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 Pacific National, 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 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 and pursuant to the agreement between the parties, the Commission has determined that the date by which voting is to close is 26 September 2023. This also establishes the ballot period for the purpose of s.448A(2) of the Act.
An Order has been separately issued in PR766075.
This matter will soon be listed for the s.448A compulsory conciliation conference and an Order made requiring attendance at the conference. 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) sought a protected action ballot order under section 437 of the Fair Work Act 2009 from the Fair Work Commission (FWC) in relation to certain employees of Pacific National Executive Services Pty Ltd. The employer did not object to the application but sought to be heard regarding the period of notice required for employee claim action and the ballot period. The matter was listed for hearing, but subsequently, the parties reached a consent position and requested the hearing be vacated. The Deputy President decided to determine the matter on the papers.

The key legal issues before the Deputy President were whether the notification time in relation to the proposed agreement had been met and if all the requirements in section 443(1) of the Act had been satisfied. The RTBU had to demonstrate that it had been genuinely trying to reach agreement with Pacific National and that it had followed the necessary procedures in seeking the ballot. The Deputy President found that the RTBU had met these requirements based on the material before them, including the declaration of Ms Amanda Perkins, RTBU Organiser.

In reaching the decision, the Deputy President considered the declaration of Ms Amanda Perkins, which outlined the steps taken by the RTBU in bargaining with the employer and that the union had been genuinely trying to reach agreement. The Deputy President also noted that Democratic Outcomes Pty Ltd T/A CiVS (CiVS), the approved ballot agent, was authorised to conduct the ballot. Pursuant to the agreement between the parties, the Deputy President determined the date by which voting is to close is 26 September 2023. An Order was separately issued in PR766075, and the matter will soon be listed for the section 448A compulsory conciliation conference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established