Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Metro Trains Melbourne Pty. Ltd. T/A Metro Trains Melbourne

[2023] FWC 2421

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

Metro Trains Melbourne Pty. Ltd. T/A Metro Trains Melbourne

(B2023/1004)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 21 SEPTEMBER 2023

Proposed protected action ballot of employees of Metro Trains Melbourne Pty. Ltd. (Rolling Stock)

This is an application by the Commination’s, 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 Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne (Metro Trains or Employer).

I observe that there is a related application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) in B2023/1003. Both applications relate to the same proposed enterprise agreement.

On 20 September 2023, the Commission was advised that Metro Trains, in effect, did not object to the Application on the basis of the amended draft order supplied, reflecting an extension to the period of written notice of industrial action addressed below.

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 Ms Chelsea Hill, legal and Industrial Administrative Facilitator, 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 Metro Trains, 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 3 November 2023.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I am satisfied that there are relevant exceptional circumstances required by s.443(5) of the Act, justifying a five (5) working days period of written notice for the purposes of s.414(2)(b) of the Act, when taking industrial action as defined in Questions 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10.

An order has been separately issued in PR766405.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with related matter B2023/1003. To the extent that this matter involves any additional bargaining representatives, the Commission will also issue the Order requiring their attendance 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, in effect, 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order concerning employees of Metro Trains Melbourne Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, seeking to facilitate a ballot for potential industrial action by the union’s members. The application was filed in response to ongoing negotiations for an enterprise agreement with Metro Trains Melbourne, and the union sought to ballot its members to ascertain their support for protected industrial action.

The legal issues before the Deputy President were whether the union had met the statutory requirements to apply for a ballot order and if there were exceptional circumstances justifying the reduced period of written notice for industrial action. The union had to demonstrate that it had genuinely attempted to negotiate with the employer and that all procedural prerequisites under the Fair Work Act had been satisfied. Additionally, the Commission had to consider whether the exceptional circumstances existed to warrant a shorter notice period for the proposed industrial action.

In its decision, the Commission found that the union had genuinely attempted to reach an agreement with Metro Trains Melbourne, satisfying the requirements under section 443(1) of the Fair Work Act. The Commission also accepted that there were relevant exceptional circumstances justifying a reduced period of written notice for industrial action, in line with section 443(5) of the Act. Consequently, the Deputy President issued an order permitting the union to conduct a ballot for industrial action with a notice period of five working days. The Commission determined that the voting period for the ballot would close on 3 November 2023. The matter will proceed to a compulsory conciliation conference, and the union and employer will be required to attend, ready to engage in meaningful negotiations.

The Commission's decision ensures that the union's application was processed efficiently, and the procedural requirements were met, allowing the union to proceed with the ballot for industrial action. The reduced notice period acknowledges the exceptional circumstances that have been presented, balancing the rights of the union to organise with the operational needs of Metro Trains Melbourne.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established