Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Rail Track Corporation Limited t/as ARTC

[2016] FWC 4086

[2016] FWC 4086

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 437 - Application for a protected action ballot order

Australian Rail, Tram and Bus Industry Union; Association of Professional Engineers, Scientists and Managers, Australia, The; Australian Municipal, Administrative, Clerical and Services Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Australian Rail Track Corporation Limited t/as ARTC
(B2016/125)

DEPUTY PRESIDENT SAMS SYDNEY, 22 JUNE 2016

Proposed protected action ballot of employees of Australian Rail Track Corporation Limited.

[1] On 17 June 2016, the Australian Rail, Tram and Bus Industry Union (RTBU), the Association of Professional Engineers, Scientists and Managers Australia (APESMA), the Australian Municipal, Administrative, Clerical and Services Union (ASU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (collectively, the ‘Unions’) lodged an application, pursuant to s 437 of the Fair Work Act 2009 (the ‘Act’), for a protected action ballot of employees of Australian Rail Track Corporation Limited t/as ARTC (the ‘respondent’), who are members of the Union and who are currently covered by the Australian Rail Track Corporation (NSW) Enterprise Agreement 2012. The Agreement reached its nominal expiry date on 19 August 2015. I observe that this application was filed immediately following the dismissal of another application by the Unions, on the basis that the application had not been made in accordance with s 440(b) of the Act; See: [PR581609].

[2] The relevant statutory provisions governing the granting of an application of this kind are set out at s 443 of the Act as follows:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

[3] In support of the application, the Unions relied on statements of Mr Gregory Cameron (Project Officer for the RTBU), Mr Graham Fozzard (Organiser for the RTBU) and Mr Michael Milburn (employed as a Network Controller by the respondent and an elected Delegate of the RTBU). Their evidence went to the negotiations between the parties and nature of the disruptions that may arise as a result of the proposed industrial action that would be protected under the protected action ballot order.

[4] The matter was listed for hearing on 21 June 2016. Mr M Diamond appeared for the RTBU and Ms A Rose appeared for APESMA, the CEPU and the ASU. Mr S Jauncey, Solicitor appeared with permission instructed by Ms J McAuliffe for the respondent. Mr Jauncey submitted that the Commission would be satisfied that the Commission that there were ‘exceptional circumstances’, within the meaning of s 443(5) of the Act that would justify a period of written notice of industrial action longer than three working days, namely seven days.

[5] The Commission convened a conference between the parties and the following agreed position was arrived at:

• that the industrial action contemplated by questions 1, 2, 3 and 12 should be subject to a minimum period of three working days’ notice;



• that the industrial action contemplated by questions 4, 5, 6, 7, 8, 9, 10 and 11 should be subject to a minimum period of four working days’ notice;



• that the industrial action contemplated by questions 13, 14 and 15 be subject to a minimum period of at least five working days’ notice; and



• that the industrial action contemplated by questions 16, 17 and 18 be subject to a minimum period of at least six working days’ notice.

[6] Mr Jauncey wished to make clear that the fact the parties had reached an agreed position on the proposed protected action ballot order, should not be regarded as his client necessarily consenting to the order. Mr Diamond advised that as a result of a request from the Australian Electoral Commission, it was proposed to extend the date on which the ballot is to close to 25 days from the date of the order. Mr Jauncey did not object to this extension.

[7] To the extent that it is necessary, I am satisfied that ‘exceptional circumstances’ exist in relation to the industrial action contemplated by questions 4-10 and 13-18 within the meaning of 443(5) of the Act. The parties provided an amended draft order to reflect this position on 21 June 2016.

[8] The Commission is otherwise satisfied that the application has been made in accordance with the requirements of s 437 of the Act and that the Union is genuinely trying to reach an agreement with the employer of the employees who are to be balloted. Given that I am satisfied that ss 443(1)(a) and (b) have been complied with, the Commission must make the protected action ballot order sought by the Union. Accordingly, the application is granted. An order reflecting the terms of the amended draft order will be published contemporaneously with this decision. It shall take effect on and from 22 June 2016.

DEPUTY PRESIDENT

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<Price code A, PR581936>