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 2022
•16 AUGUST 2023
| [2023] FWC 2022 |
| 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
Metro Trains Melbourne Pty. Ltd. T/A Metro Trains Melbourne
(B2023/833)
| COMMISSIONER CONNOLLY | MELBOURNE, 16 AUGUST 2023 |
Proposed protected action ballot of employees of Metro Trains Melbourne Pty. Ltd. Trading As Metro Trains Melbourne
This is an application by the Association of Professional Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical Trades Union (Victorian Branch) (CEPU) made under s.437 of the Fair Work Act 2009 (Act) for a protected ballot order (PABO) in relation to certain employees of Metro Trains Melbourne Pty Limited T/A Metro Trains Melbourne (Metro Trains or Employer)
The application was lodged on the 14 August 2023.
On Tuesday, 15 August 2023, the matter was allocated to me for determination.
The group of employees to be balloted are those who will be covered by the proposed enterprise agreement and are members of and are represented by the bargaining representative, the Applicant. The agreement is proposed as a replacement agreement for the Metro Trains Melbourne Infrastructure Enterprise Agreement 2019, the nominal expiry date of which was 30 June 2023.
The proposed agreement is not a greenfields agreement, or a multi-enterprise agreement that is a cooperative workplace agreement. There has also been a notification time for the proposed agreement and the application and accompanying documentation is in order. The application and proposed order have also been provided by the CEPU to Metro Trains, the other bargaining representatives and the proposed ballot agent. This meets the various requirements for the making of a PABO set out in the Act.[1]
The application was supported by a statutory declaration of Ms Chelsea Hill, CEPU Legal and Industrial Administrative Facilitator. The declaration confirmed 9 bargaining meetings have occurred between 18 April 2023 and 10 August 2023 and identified that the CEPU has been, and is, genuinely trying to negotiate the terms of the proposed enterprise agreement with the Employer. Further, that the CEPU provided its log of claims to the Employer on the 18 April 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 CEPU’s application sought that the protected action ballot close at 10:00 am on Monday 28 August 2023.
On Tuesday, 15 August 2023, the Commission was advised that Metro Trains did not intend to oppose the application but indicated that it intended to raise concerns about whether the proposed order should be made. Correspondence provided to the registry by Mr Brad Nash, Metro Trains Senior Workplace Relations Manager advised the Commission to this effect.
Subsequently, my chambers issued a Notice of Listing to parties to attend a Conference and Hearing to be convened to consider and determine the application at 1:00pm on Wednesday 16 August 2023 by Video using Microsoft Teams.
On 16 August 2023, my chambers was also allocated a PABO application in the name of the Association of Professional Engineers, Scientist and Managers, Australia (APESMA) T/A Professionals Australia in relation to employees of the same Employer. 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 and a Notice of Listing was issued for APESMA to join the Conference and Hearing at 1:00pm.
Immediately prior to the commencement of the Hearing, my chambers was provided with an amended Draft Order by the CEPU which included an additional clause to extend the notice period to 5 working days. The CEPU indicated parties would address the correspondence in proceedings.
The Hearing
The parties were represented at the Hearing by Mr Yasser Bakri (Of Counsel) for the CEPU and Mr Matthew Minucci (Of Counsel) representing Metro Trains. Both representatives sought leave to appear, and leave was granted in the circumstances in accordance with s.596 of the Act. Mr Scott Crawford appeared representing APESMA.
Parties were initially invited to advise the Commission if they had any objections to the PABO applications of the CEPU and APESMA being dealt with together in these proceedings. The parties had no objections. 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 were dealt with together at the Hearing.
In its submissions, representatives for the CEPU addressed the amended Draft Order which was provided to Chambers prior to the Hearing. The CEPU indicated there had been discussions between the parties earlier in the day to seek to address the concerns of the Respondent and that an understanding had been reached such that the full terms of the amended Draft Order had addressed the concerns and would not be objected to by the Respondent.
In its submissions, representatives for Metro Trains affirmed that position put by the Applicant and indicated that a PABO being made by this Commission in the full terms as set out in the amended Draft Order provided to my Chambers would not be objected to or opposed by the Respondent.
With respect to the application by APESMA, representatives for Metro Trains indicated that they would welcome an amended application being submitted.
Representatives for APESMA indicated that they would be prepared to provide an amended application for consideration. During the course of the Hearing an amended Draft Order was provided by APESMA to the Respondent along with my Chambers and Metro Trains indicated that they would also not object to a PABO being made in the full terms set out in this amended Draft Order. A separate decision will be issued to the further particulars of this APESMA application.
I am satisfied that the full terms of the amended Draft Order provided by the CEPU to their application meet the requirements of the Act and they have been reflected in the Order ultimately made by this Commission.
Conclusion
On the basis of all the materials presented before me, including the declaration of Ms Chelsea Hill, and for the reasons set out above I am satisfied that the CEPU has been, and is, genuinely trying to reach an agreement with Metro Trains 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 & Voting Systems Solutions Pty Ltd T/A Vero Voting (Vero Voting). Vero Voting has recently been approved as an eligible protected ballot agent under s 468A of the Act[2] and consequently is authorised to conduct the ballot. The ballot period is proposed to commence from the date the PABO has been issued by the Commission.
An Order has been separately issued in PR765161.
This matter 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
Appearances (via videoconference):
Mr Y Bakri (of Counsel) on behalf of the Applicant
Mr M Minucci (of Counsel) on behalf of the Respondent
Hearing details:
2023.
Melbourne.
16 August.
[1] ss. 437, 438 and 440 of the Act.
[2] [2] Vero Engagement & Voting Solutions T/A Vero Voting [2023] FWC 1531.
Printed by authority of the Commonwealth Government Printer
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