Australian Rail, Tram and Bus Industry Union v Rail Commissioner
[2011] FWA 1421
•3 MARCH 2011
[2011] FWA 1421 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Australian Rail, Tram and Bus Industry Union
v
Rail Commissioner
(B2011/2602)
(B2011/2603)
(B2011/2604)
DEPUTY PRESIDENT BARTEL | ADELAIDE, 3 MARCH 2011 |
Proposed protected action ballots by employees of the Rail Commissioner
[1] This decision deals with applications by the Australian Rail, Tram and Bus Industry Union (RTBU) pursuant to s.437 of the Fair Work Act 2009 (the Act) for protected action ballot orders in respect to each of three proposed enterprise agreements for employees of the Rail Commissioner. The three applications were heard concurrently on 2 March by consent of the parties. I dismissed all three applications on that day and advised the parties that I would issue written reasons for my decision, which I now do.
[2] The employees to be covered by the proposed enterprise agreements are currently covered by three certified agreements made pursuant to the Workplace Relations Act 1996, being the TransAdelaide Train Operations Certified Agreement 2005, the TransAdelaide Tram Operations Certified Agreement 2005 and the TransAdelaide Salaried, Professional and Technical Employees Certified Agreement 2005 (“the existing agreements”). The Rail Commissioner (referred to hereafter as “the employer”) was established by the Rail Commissioner Act 2009 (SA) and for present purposes, effectively replaced the statutory authority known as TransAdelaide as the employer of the relevant employees.
[3] The history of the negotiations between the RTBU and the employer can be summarised as follows. Negotiations between the parties commenced approximately 12 months ago and were directed to a single enterprise agreement to cover all employees covered by the three existing agreements. The attitude of the RTBU was that it was prepared participate in negotiations for a single agreement, but reserved its rights to revert to separate agreements in the event that a satisfactory outcome was not achieved.
[4] In late January 2011 the employer advised of its intention to put the proposed agreement to a vote. The document to be voted upon was not agreed by the RTBU 1 and at a stop work meeting on 27 January 2011, RTBU members voted that bargaining revert to negotiations around the three existing agreements.2 The proposed single agreement was overwhelmingly defeated at the ballot, with the results advised to staff on 9 February 2011.3
[5] Also on that day, the RTBU requested that the employer convene a meeting of the train operations representatives and the representatives of the employer to renegotiate the existing train operations agreement as a matter of urgency. The position of the employer was that it wanted to convene a meeting of representatives from all work groups to “debrief” about the vote outcome. This was not opposed by the RTBU, but on 10 February 2011 reiterated its position that it had been instructed by members to renegotiate separate agreements. 4 A meeting was held on 16 February. The Chief Operating Officer for the employer, Peter Doggert, requested information from the RTBU as to the key issues that resulted in the “no” vote on the single agreement and it was agreed that the RTBU would provide a list of issues by 25 February 2011. The minutes of the meeting record that the employer offered to immediately “rollover” the existing agreements with a 7.5% pay rise over 3 years and this was rejected.5
[6] Subsequently, the RTBU obtained advice from its National Office to the effect that, in view of the resolution of its members at the meeting in January, the RTBU would not breach its good faith bargaining obligations by refusing to provide the employer with a list of key concerns for members that resulted in the defeat of the proposed single enterprise agreement at the ballot of employees. This position was advised to the employer in correspondence dated 25 February, wherein the RTBU also advised that it wished to meet to renegotiate the existing agreements. 6
[7] Mr Doggert responded to the RTBU State Secretary, Ashley Waddell, by letter dated 28 February. 7 The following excerpts are particularly relevant:
“If, as you propose, the parties now resume negotiations, I am uncertain as to which of the measures previously proposed might be retained and those which might be abandoned in upcoming negotiations. The absence of any indication of the types of alternative measures which might now need to be considered significantly limits the extent to which related proposals might be developed.
...
During the course of earlier negotiations, I understood that various employee representatives had indicated that their respective workgroups were reluctant to consider a roll-over of existing provisions and sought to develop alternative arrangements on behalf of the employees they represented at that time.
In the absence of any details which might assist in identifying matters for further consideration or amendment in this regard, and not having been advised of any alternative employee representatives who might need to be involved in associated discussions, 8 I am unsure as to the manner in which such discussions might now proceed.
Accordingly, could you please provide an indication of the types of issues which you might now wish to have considered and the details of the employee representatives who might need to be involved in future discussions.”
[8] The RTBU lodged the three applications for protected action ballot orders on that day. Mr Waddell had not responded to Mr Doggert’s correspondence as at the date of the hearing on 2 March 2011.
[9] Mr Waddell submitted that the RTBU has genuinely tried to reach agreement with the employer and remain committed to a genuine process of negotiation. He stated that a single agreement was no longer supported by RTBU members but that the employer wants to pursue a single agreement, as evidenced by its desire to re-examine those provisions that did not find ‘favour’ with the employees. Mr Waddell submitted that separate agreements would overcome many of the provisions in the single agreement that were resisted by employees, such as flexibility to move employees between different areas, and that separate agreements would also enable problems in one area to be isolated so that agreements in other areas were not held up.
[10] Mr Moritz, for the employer, argued that the RTBU’s applications were premature and that the RTBU had not advised the claims it wanted to pursue. His submissions echoed the points set out in Mr Doggert’s correspondence of 28 February, as set out above, and will not be repeated here.
Consideration
[11] Section 443(2) of the Act provides that Fair Work Australia (FWA) must not make a protected action ballot order in relation to a proposed enterprise agreement unless it is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees to be balloted.
[12] FWA must assess all relevant circumstances in considering whether an applicant is genuinely trying to reach agreement, including whether the applicant has clearly articulated the major items that it is seeking. 9
[13] I am satisfied that the RTBU has genuinely tried to reach agreement with the employer in the lead up to the ballot on the proposed single agreement. However, I have formed the view that the RTBU had not sufficiently articulated its claims in respect to three separate agreements that it now seeks and as a result, the employer is not in a position to respond. The points made and the information requested by Mr Doggert as set out in the passages of his letter of 28 February set out earlier, are legitimate matters that need to be addressed by the RTBU to enable genuine negotiations between the parties to occur.
[14] I note the submission of Mr Waddell that he fully intends to respond to Mr Doggert’s letter and have no reason to doubt that he will do so. I determine however that the RTBU applications are premature in this situation. It can not be said that the RTBU is genuinely trying to reach agreement if its claims have not been articulated. As such, the statutory requirement in s.443(1)(b) of the Act has not been met.
[14] The applications are dismissed.
DEPUTY PRESIDENT
1 RTBU 1
2 RTBU 2
3 RTBU 3
4 RTBU 4
5 RTBU 5
6 RTBU 6
7 RC 1
8 This is a reference to advice from the RTBU on 10 February (RTBU 4) that the union was in the process of electing new representatives in tram operations.
9 Total Marine Services v Maritime Union of Australia [2009] FWA 368 at PN 32
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