Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v KDR Victoria Pty Ltd T/A Yarra Trams
[2023] FWC 2344
•13 SEPTEMBER 2023
| [2023] FWC 2344 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU)
v
KDR Victoria Pty Ltd T/A Yarra Trams
(B2023/944, B2023/947)
| COMMISSIONER CONNOLLY | MELBOURNE, 13 SEPTEMBER 2023 |
Proposed protected action ballot of employees of KDR Victoria Pty. Ltd. T/A Yarra Trams
Background
This is an application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the AMWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected ballot order (PABO) in relation to certain employees of KDR Victoria Pty Ltd T/A Yarra Trams (Yarra Trams or Employer).
The application was lodged on 5 September 2023 and was allocated to me on 6 September 2023 for determination.
In these circumstances the AMWU has made two separate applications under s.437 for a PABO in relation to employees of Yarra Trams employed under two separate enterprise agreements known respectively as the Yara Trams Enterprise Agreement 2019 – Rolling Stock, Administration, Technical & Professional (RSATP EA) [B2023/944] and the Yarra Trams Enterprise Agreement 2019 – Infrastructure (Infrastructure EA) [B2023/947].
I note that the “Communications, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union” (the CEPU) and the "Australian Rail, Tram and Bus Industry Union” (RTBU) have also both made separate applications for a PABO in relation to the same group of employees of Yarra Trams.[1]
Each of these applications where also lodged on 5 September 2023 and allocated to me on 6 September 2023 for determination.
The group of employees to be balloted are those who will be covered by the proposed enterprise agreements and are members of and are represented by the bargaining representative who is the Applicant for this PABO. The agreements are proposed as a replacement agreement for the Infrastructure EA and the RSATP EA, both of which have a nominal expiry date of 30 June 2023.
The proposed agreements are not greenfields agreements, or multi-enterprise agreements that are a cooperative workplace agreement. There has also been a notification time for the proposed agreements and the application and accompanying documentation for each is in order. The application and proposed orders have also been provided by the AMWU to Yarra Trams, the other bargaining representatives and the proposed ballot agent. This meets the various requirements for the making of a PABO.[2]
The applications are supported by a statutory declaration of Mr Raoul Wainwright, AMWU Industrial Officer with respect to the Infrastructure EA and Mr Andrew Bonello, AMWU Industrial Officer with respect to the RSATP EA. Both these declarations confirm 7 bargaining meetings have occurred between, on or about the 28 April 2023 and 5 September 2023, and identified that the AMWU has been, and is, genuinely trying to negotiate the terms of the proposed enterprise agreements with the company. Further, that the AMWU provided its log of claims to the company on the 11 May 2023, explained its claims and seriously considered and responded to the proposal put to it. The declaration stated that the parties remain unable to agree on several issues.
The AMWU’s initial application sought that the protected action ballot close on 19 September 2023. However, was subsequently amended to 12:00pm on Friday, 22 September 2022 with the filing of amended draft orders.
On 6 September 2023, the Commission was advised that Yarra Trams intended to object to the application.
On 6 September 2023, my Chambers issued Directions to all parties in these matters for a Hearing to be convened at 1:00pm on Thursday, 7 September 2023 to consider and determine the applications. Submissions from the Respondent were to be filed by 10:00am Thursday, 7 September 2023 and by the Applicant in reply by 12:00pm.
In accordance with the provisions of s 442 of the Act I determined to seek the views of the parties on whether the applications should be dealt with together.
On 7 September 2023, the Respondent filed submissions with regard to the existence of “exceptional circumstances” that warrant the grant of an extension of the notice period pursuant to ss 414(2) and 443(5) of the Act.
At approximately 12.50pm on Thursday 7 September 2023, my Chambers received an email from the Respondent’s representative indicating the parties were seeking an adjournment to the Hearing to Wednesday, 13 September 2023 to allow for further discussions to occur, including a further bargaining meeting scheduled for the following day. Correspondence from the Applicants affirmed this request, adding that on review of the Respondent’s submissions it was in the interests of natural justice for the Applicants to be provided additional time to prepare and file submissions in reply. On consideration of the evidentiary material, along with the consistent views of the parties, the Hearing was adjourned to 11.30am on Wednesday 13 September 2023, with the Applicants to file submissions in reply by 12:00pm on Tuesday, 12 September 2023.
On 12 September 2023, my Chambers received an email from the Applicant advising that “the parties have reached an agreed position” and provided amended draft orders said to be reflecting the agreed position that included an extension of notice period pursuant to ss414(2) and 443(5) of the Act to between 5 and 7 days for specific forms of proposed industrial action. On this basis the Applicant further sought that the amended PABO’s be made by the Commission and the scheduled Hearing be vacated.
Subsequently, my Chambers sought confirmation from the Respondent of their position and clarification from both the CEPU and RTBU as to their positions.
The CEPU and the RTBU confirmed they had similarly reached an agreed position with the Respondent and provided amended draft orders in the agreed terms that also included an extension of notice period pursuant to ss 414(2) and 443(5) of the Act to between 5 and 7 days for specific forms of proposed industrial action.
My Chambers also received advice from the Respondent confirming it had reached an agreed position with the AMWU as had been indicated and confirmed that these terms were reflected in the copies of the respective draft PABO orders that had been provided by the parties to the Commission. The Respondent provided the same advice with respect to the respective PABO applications by the CEPU and the RTBU. Separate decisions will be issued further to the particulars of these applications by both the CEPU and the RTBU.
Based on the materials filed and observing the agreed position of the parties, I considered it appropriate to determine these matters on the papers without holding the scheduled Hearing. I further determined that in the circumstances of the multiple PABO applications of the CEPU, RTBU and AMWU with respect to the employees of Yarra Trams covered respectively by the RSATP EA and Infrastructure EA, it was appropriate to deal with these applications together. Being satisfied on the evidence that the provisions of s 442 have been met and that there would be no delay to the determination of any of the applications, the applications are dealt with together in this decision.
Regarding whether the circumstances warrant an extension to the notice period, I have found that they do. To warrant an extended period of notice, the Commission must be satisfied both as to the existence of exceptional circumstances and the fact that these justify the granting of extended notice. The onus is on the Respondent to provide evidence that would satisfy the Commission there are exceptional circumstances in this instance.
I adopt the reasons set out by Deputy President Hampton in two recent decisions regarding the test for whether exceptional circumstances exist. Specifically, the test is whether the circumstances are such that they are out of the normal course of events, unusual, uncommon on extraordinary.[3] These principles were applied in the context of applications for extended notice periods by the Full Bench in CFMMEU v DP World Brisbane Pty Ltd.[4]
In the present circumstances, Yarra Trams has submitted that the nature of the protected industrial action sought would cause significant disruptions to both Yarra Trams and the provisions of public transport services to the community of Melbourne. I am satisfied on these submissions that the circumstances give rise to a finding of exceptional circumstance and that such circumstances justify the extension of the notice period up to 7 working days.
The Amended Draft Orders include these additional notice provisions, and I am satisfied that the full terms of these amended orders provided by the AMWU meet the requirements of the Act and they have been reflected in the Orders ultimately made by this Commission.
Conclusions
On the basis of all the materials presented before me, including the declarations of Mr Raoul Wainwright and Mr Andrew Bonello, and for the reasons set about above, I am satisfied that the AMWU has been, and is, genuinely trying to reach an agreement with Yarra Trams and that there is a notification time in relation to the proposed agreement and that all of the requirements of s 443(1) of the Act have been met.
The ballot is to be conducted by Vero Engagement and Voting Solutions (Vero Voting). Vero Voting has recently been approved as an eligible protected ballot agent under s 468A of the Act and consequently is authorised to conduct the ballot.[5] The ballot period is proposed to commence from the date the PABO is issued by the Commission.
Orders have been issued separately in PR765935 and PR765920.
These matters will shortly be listed for a s.448A conference. An order requiring the bargaining representatives attendance at the conference will thereafter be issued. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.
COMMISSIONER
[1] B2023/941, B2023/942, B2023/945 and B2023/948.
[2] Act ss. 437, 438, 440 of the Act.
[3] AMWU v Otis Elevator Company Pty Ltd T/A Otis Elevator Company [2023] FWC 1337 and AMWU v UGL Rail Services Pty Limited [2023] FWC 1365
[4] [2019] FWCFB 1150.
[5] Vero Engagement & Voting Solutions T/A Vero Voting [2023] FWC 1531.
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