Australian Rail, Tram and Bus Industry Union, WA Branch v Australia Western Railroad Pty Ltd
[2011] FWA 6791
•3 OCTOBER 2011
[2011] FWA 6791 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Australian Rail, Tram and Bus Industry Union, WA Branch
v
Australia Western Railroad Pty Ltd
(B2011/3500)
COMMISSIONER CLOGHAN | PERTH, 3 OCTOBER 2011 |
Proposed protected action ballot by employees of Australia Western Railroad Pty Ltd.
[1] On 22 September 2011, the Australian Rail, Tram and Bus Industry Union, Western Australian Branch (ARTBIU) (“the Applicant”) made application to Fair Work Australia for a Protected Action Ballot Order pursuant to s.437 of the Fair Work Act 2009 (“the FW Act”).
[2] The employees (“the Employees”) to be balloted are employed by Australia Western Railroad Pty Ltd (“the Employer”) to carry out work within the classifications listed in Appendix 1 of the Australia Western Railroad (Western Australia) Rail Operations Union Collective Agreement 2007 (“the Agreement”). The nominal expiry date of the Agreement is 31 December 2010. The Employees will be covered by a replacement agreement for the Agreement and the ARTBIU is a bargaining representative for the Employees.
[3] The application was heard and determined on 23 September 2011. At the conclusion of the hearing, I made a determination that the ARTBIU had satisfied the provisions of the FW Act and an Order should issue. These are the written reasons for issuing the Order.
[4] At the hearing, the ARTBIU was represented by Mr Fogliani. The Employer was not represented at the hearing but Mr E Mitsopoulos, Employee Relations Manager Bulk West/Iron Ore provided an email on 22 September 2011 outlining the Employer’s position on the application.
[5] As a consequence of Mr Mitsopoulos’ email, the ARTBIU made application pursuant to subsection 586(a) of the FW Act to amend its application and for the name of the Respondent Employer “Australia Western Railroad Pty Ltd t/as ARG - A QR Company” to be deleted and “Australia Western Railroad Pty Ltd” be inserted in lieu. I considered the amendment appropriate and the application was amended accordingly.
[6] Mr Fogliani submitted to the Tribunal that the ARTBIU has been in negotiations with the Employer for a replacement enterprise agreement since 5 November 2010. Numerous bargaining meetings have occurred. The Employer has put a proposed enterprise agreement to employees for approval; the employees rejected the proposed agreement by a ballot. The ARTBIU has previously conducted two successful ballots for protected industrial action. The ARTBIU has also extended the period allowed to commence protected industrial action. Further, the bargaining has been the subject of a conciliation conference in FWA.
[7] From the ARTBIU perspective, the “heart of the dispute” relates to the Employer’s view that it is unable to agree that there should be parity between similar employees in Queensland and Western Australia as well as a number of workplace allowances. It would appear that wages are a major hurdle in negotiations.
EMPLOYER’S RESPONSE TO APPLICATION
[8] Mr Mitsopoulos advised the Tribunal by email that, “the respondent is not opposed to the application”. My understanding of such a position is that the Employer is neither consenting nor concurring with the application but will not oppose the Applicant’s submission. Simply put, it is a matter for the Tribunal to assess the submission of the ARTBIU and make any order accordingly.
[9] As a consequence of its position on the application, the Employer did not make any appearance or oral submissions.
CONCLUSION
[10] I am satisfied that the procedural requirements in sections 437, 438 and 440 of the FW Act have been met.
[11] Having considered the relevant provisions of the FW Act, submission of the ARTBIU and the Employer’s position on the application, I determined that the Applicant has been and is genuinely trying to reach agreement for a replacement to the Agreement with Australia Western Railroad Pty Ltd; on this basis I issued Order PR515015 on 26 September 2011.
COMMISSIONER
Appearances:
Mr C Fogliani for the Applicant.
No appearances for the Respondent.
Hearing details:
2011:
Perth,
23 September.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR515243>
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