Australian Workers' Union v Alstom Transport Australia Pty Ltd

[2024] FWC 2720

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Alstom Transport Australia Pty Ltd

(B2024/1278)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 30 SEPTEMBER 2024

Proposed protected action ballot of employees of Alstom Transport Australia Pty Ltd

This is an application by the Australian Workers’ Union (AWU 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 Alstom Transport Australia Pty Ltd (Alstom or Employer).

I note that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) have made a separate application for a protected action ballot order in relation to the same proposed agreement.[1]

On 30 September 2024, the Commission was advised that the Employer, in effect, did not object to the Application.

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 Jimmy Mastrandonakis, Organiser, setting out the steps taken by the AWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Alstom, 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 Australian Electoral Commission.

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

An Order has been separately issued in PR779776.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference in conjunction with the related matter. That Member will issue an Order requiring the attendance of all bargaining representatives 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] B2024/1279.

[2] This is, in effect, 30 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Australian Workers' Union versus Alstom Transport Australia Pty Ltd, the Australian Workers' Union has applied under section 437 of the Fair Work Act 2009 for a protected action ballot order regarding certain employees of Alstom Transport Australia Pty Ltd. This application was made in the Fair Work Commission, with the Deputy President Hampton presiding over the case on 30 September 2024. The application seeks to conduct a ballot to determine if employees are in favour of protected industrial action due to unresolved disputes in the bargaining process with their employer.

The legal issues before the Commission centred on whether the Australian Workers' Union had fulfilled the necessary criteria to proceed with the ballot. This included verifying that the union genuinely attempted to reach an agreement with Alstom and that a notification time existed for the proposed agreement. Additionally, the Commission needed to establish the closing date for voting in the ballot. A separate application by another union for a ballot regarding the same proposed agreement was also noted but was considered independently.

The Deputy President Hampton found that Alstom did not object to the application and determined the matter based on the submitted documentation. The evidence presented, including a declaration from the AWU's Organiser, Jimmy Mastrandonakis, demonstrated that the union had genuinely tried to negotiate with Alstom. Consequently, the Deputy President was satisfied that the statutory requirements for a ballot order had been met. The Commission set the closing date for voting as 12 November 2024, effectively 30 working days from the issuance of the order, which aligned with the period requested in the application.

The Commission issued an order for the ballot to be conducted by the Australian Electoral Commission. Additionally, the matter was assigned to another member of the Commission to conduct a compulsory conciliation conference in relation to the proposed enterprise agreement. This member was also tasked with issuing an order for all bargaining representatives to attend the conference and potentially issuing directions to ensure meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established