Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Great Southern Rail Limited

[2023] FWC 3212

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

Great Southern Rail Limited

(B2023/1328)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 5 DECEMBER 2023

Proposed protected action ballot of employees of Great Southern Rail Limited

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Great Southern Rail Limited (Great Southern Rail or Employer).

On 4 December 2023, the Commission was advised that Southern Rail, 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 Mr Paul Scrudds on behalf of the CEPU, setting out the steps taken by the CEPU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Great Southern Rail, 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 29 January 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

Following consultation with the parties, I have amended the draft order to confirm the group of employees to be balloted (clause 3) and the preamble to the questions (clause 5).

An order has been separately issued in PR768980.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved 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] This is the date specified in the application and is, in effect, 35 working days from the making of the Order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Great Southern Rail Limited (Great Southern Rail). This was to facilitate a proposed protected action ballot, as the union and the employer had been engaged in negotiations for an enterprise agreement but had not reached an agreement. The employer did not object to the application, allowing the Commission to decide the matter without a hearing.

The legal issues before the Deputy President involved determining whether the union had satisfied the requirements under section 443 of the Act for a protected action ballot order. This included confirming the union's genuine attempts to reach an agreement with the employer and ensuring all procedural requirements were met. Additionally, the court had to establish the appropriate date by which voting would close, which was set as 29 January 2024, effectively 35 working days from the date of the order.

The Deputy President found that the union had genuinely attempted to reach an agreement with the employer, satisfying the requirements under section 443(1) of the Act. The court also determined the closing date for voting, which was consistent with the union's application. Furthermore, the court amended the draft order to clarify the group of employees to be included in the ballot and the preamble to the questions, ensuring the ballot's legality and effectiveness. The matter will proceed to a compulsory conciliation conference under section 448A of the Act, where meaningful negotiations will be required.

The court issued an order confirming the ballot period and the group of employees to be balloted, as well as setting the closing date for voting. The matter will be assigned to another Member of the Commission for the conciliation conference. This order ensures that the employees' rights to engage in protected action are upheld while also encouraging the employer and the union to reach an agreement through negotiation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established