Australian Rail, Tram and Bus Industry Union v v/Line Corporation T/A v/Line Summary

[2023] FWC 2970

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

V/Line Corporation T/A V/Line

(B2023/1243)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 14 NOVEMBER 2023

Proposed protected action ballot of employees of V/Line Corporation Trading As V/Line

This is an application by the Australian Rail, Tram and Bus Industry Union (RTBU 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 the V/Line Corporation T/A V/Line (V/Line or Employer).

On 13 November 2023, the Commission was advised that the Employer did not object to the Application and that the parties had reached agreement in relation to extended periods of notice for some of the proposed 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 Vikrant Sharma, Victorian Branch Secretary, 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 V/Line, 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.

Based on the terms of the agreement reached between the parties, I am satisfied that there are exceptional circumstances justifying the period of written notice being longer than 3 working days for the following industrial actions: stoppages of work for more than an hour and up to 48 hours, stoppages of the performance of all work for up to an hour, and overtime bans. Pursuant to s.443(5) of the Act, the period of written notice for the purposes of s414(2)(b) of the Act is 7 working days for stoppages of more than an hour and up to 48 hours, 6 working days for stoppages of up to an hour and 5 working days for overtime bans.

The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd trading as Vero Voting (Vero). Vero 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 29 November 2023. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR768234.

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] Vero Engagement & Voting Solutions Pty Ltd T/A Vero Voting[2023] FWC 1531.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Rail, Tram and Bus Industry Union (RTBU) applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of V/Line Corporation T/A V/Line. The application was made under section 437 of the Fair Work Act 2009. The RTBU sought permission to conduct a ballot for protected industrial action, which would include stoppages of work for more than an hour and up to 48 hours, stoppages of the performance of all work for up to an hour, and overtime bans. The V/Line Corporation did not object to the application, and the parties had reached an agreement on extended notice periods for some of the proposed industrial actions.

The legal issues before the Fair Work Commission were whether the RTBU had met all the requirements under section 443(1) of the Act to conduct a ballot for protected industrial action, and whether there were exceptional circumstances justifying the extended periods of notice for the proposed industrial actions. The Commission had to consider whether the RTBU had genuinely tried to reach an agreement with V/Line, whether all procedural requirements were met, and whether the extended notice periods were justified.

The Fair Work Commission found that the RTBU had genuinely tried to reach an agreement with V/Line and had met all the requirements under section 443(1) of the Act. The Commission was satisfied that there were exceptional circumstances justifying the extended periods of written notice for the proposed industrial actions. The period of written notice for stoppages of more than an hour and up to 48 hours was set at 7 working days, 6 working days for stoppages of up to an hour, and 5 working days for overtime bans. The Commission also determined that the date by which voting is to close is 29 November 2023, and Vero Engagement & Voting Solutions Pty Ltd trading as Vero Voting was approved to conduct the ballot.

The Fair Work Commission issued an order for the protected action ballot to proceed, with the specified notice periods. The Commission will conduct a compulsory conciliation conference to ensure meaningful negotiations between the parties. Further orders and directions will be issued as necessary to facilitate the conference and the negotiation process.

Australian Rail, Tram and Bus Industry Union v v/Line Corporation T/A v/Line

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established