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

[2024] FWC 3008

[2024] FWC 3008

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

Sydney Trains and NSW Trains

(B2024/1409)

DEPUTY PRESIDENT WRIGHT SYDNEY, 30 OCTOBER 2024

Proposed protected action ballot of employees of Sydney Trains and NSW Trains

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

1. On 30 October 2024, the Commission was advised that the Employer, in effect, did not object to the Application, as amended following discussions between the parties.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the declaration of Jesse Saville, Organiser, setting out the steps taken by the CEPU in bargaining with the Employers and that it has been, and is, genuinely trying to reach agreement with them, 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.

1. I observe that the Parties agreed for the CEPU to provide the following undertaking, which is included in the Order:  

Safety Commitment
Number 34 shall be subject to the following safety commitment.

1.The CEPU will take reasonable steps to advise its members that they should continue to use vehicles provided by Sydney Trains for the following purposes:

2.While an employee is rostered on-call the employee shall continue to use their Sydney-Trains provided vehicle to attend and perform any call-out to perform work

3.Any employee directed to engage in incident response work shall continue to use their Sydney Trains provided vehicle for the purpose of attending to that work and while engaged in that work

4.Any employee who has been provided with a vehicle for take-home use by Sydney Trains shall use their Sydney Trains provided vehicle for transit to and from their designated depot for the commencement of their shift or at the conclusion of their shift if so directed

5.Further to the above, any employee who is reasonably directed to use their Sydney Trains provided vehicle for the purpose of responding to an emergency that presents an imminent risk to health and safety shall follow that direction.

1. The ballot is to be conducted by Vero Engagement and Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

1. 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 13 November 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. The extended notice period of 7 working days applies to the items listed within Clause five (5) of the Order. 

1. An Order has been separately issued in PR780768.

1. 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 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, in effect, 10 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

<PR780769>