Australian Rail, Tram and Bus Industry Union v Watco Australia Logistics Pty Ltd

[2024] FWC 2963

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

Watco Australia Logistics Pty Ltd

(B2024/1387)

DEPUTY PRESIDENT ROBERTS

SYDNEY, 25 OCTOBER 2024

Proposed protected action ballot of employees of Watco Australia Logistic 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 Watco Australia Logistics Pty Ltd (Watco or Employer).

On 25 October 2024, the Commission was advised that the Employer did not object to the Application subject to minor amendments to the proposed draft order. The Applicant advised that those amendments were consented to.

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 Kevin Thomas Pryor, Organiser, setting out the steps taken by the ARTBIU in bargaining with the Employer and that the ARTBIU has been, and is, genuinely trying to reach agreement with Watco, 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. I am also satisfied that the application was provided to the employer and the ballot agent in accordance with s.440 of the Act.

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 Act 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 8 November 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR780604.

I will conduct the s.448A compulsory conciliation conference and will issue an Order requiring the attendance of all bargaining representatives for the proposed enterprise agreement at the conference. Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 10 business days from the making of the Order and was the date which the parties consented to.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Rail, Tram and Bus Industry Union (ARTBIU) applied to the Fair Work Commission for a protected action ballot order regarding certain employees of Watco Australia Logistics Pty Ltd. The employer did not object to the application, subject to minor amendments, which the union agreed to. Consequently, the matter was determined on the papers without a hearing.

The central legal issues the Commission had to resolve included whether the union had genuinely attempted to reach an agreement with the employer, whether the notification period was appropriate, and if the application was correctly provided to the employer and the ballot agent as per the Fair Work Act 2009. The Commission was satisfied that the union had been genuinely trying to reach an agreement, that the notification time was correct, and that the application was properly served.

The Deputy President concluded that all the requirements of section 443(1) of the Fair Work Act 2009 had been met, and that the union had followed the necessary procedures. The Commission also confirmed that TrueVote Pty Ltd, the approved ballot agent, was authorised to conduct the ballot. The voting period for the ballot was set to close on 8 November 2024. Additionally, the Deputy President announced the scheduling of a compulsory conciliation conference to facilitate meaningful negotiations, with an order to be issued for the attendance of all bargaining representatives.

The final orders included the approval of the ballot, the setting of the voting closure date, and the scheduling of a compulsory conciliation conference. These orders were aimed at ensuring that the union and the employer engage in meaningful negotiations to reach a resolution.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established