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

[2024] FWC 2366

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

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

Sydney Trains, NSW Trains

(B2024/1117)

COMMISSIONER CRAWFORD

SYDNEY, 3 SEPTEMBER 2024

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

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 (FWAct) for a protected action ballot order in relation to certain employees of Sydney Trains and NSW Trains (Employers).

On 3 September 2024, the Commission was advised that the CEPU and the Employers had effectively reached a consent position in relation to the application. At a high level, the CEPU agreed to some modifications to the proposed questions to deal with the Employers’ safety concerns and the CEPU agreed not to oppose the Employers’ request for a longer written notice period of seven working days for employee claim action. Given these concessions, the Employers withdrew their opposition to the application.

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

The CEPU has provided uncontested evidence via a declaration from Jesse Saville (Organiser) which sets out the steps taken by the CEPU in bargaining with the Employers and provides evidence that the CEPU has been, and is, genuinely trying to reach agreement with the Employers.

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 FW Act have been met.

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.

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 24 September 2024, which is 15 working days from the date of this decision and the accompanying Order. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR778890.

This matter will be assigned to a 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.

COMMISSIONER

Determined on the papers.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide on an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order in relation to certain employees of Sydney Trains and NSW Trains. The CEPU sought to conduct a ballot to determine if the employees should engage in protected action in relation to their employment conditions. The employers, Sydney Trains and NSW Trains, had initially opposed the application but later withdrew their opposition after reaching a consent position with the CEPU. The CEPU agreed to modify the proposed ballot questions to address the employers' safety concerns and did not oppose a longer notice period for employee claims.

The legal issues before the Commission included whether the CEPU had genuinely attempted to reach an agreement with the employers, whether the proposed ballot complied with the requirements of the Fair Work Act 2009, and whether the ballot agent, Vero Engagement and Voting Solutions Pty Ltd, was appropriately authorised to conduct the ballot. The Commission had to determine if the CEPU had satisfied the notification and procedural requirements under the Act for a protected action ballot.

The Commission determined the matter on the papers, accepting the uncontested evidence from Jesse Saville, the CEPU Organiser, that the union had been genuinely trying to reach an agreement with the employers. The Commission found that all requirements under s.443(1) of the Fair Work Act had been met, and Vero had been approved as an eligible ballot agent under s.468A of the Act. The Commission fixed the closing date for voting on the ballot as 24 September 2024, being 15 working days from the date of the decision. The Commission also issued an Order assigning the matter to a Member to conduct a compulsory conciliation conference under s.448A of the Act.

The Commission issued an Order allowing the CEPU to conduct the ballot and scheduled a compulsory conciliation conference to facilitate further negotiations between the parties. The Commission determined the matter without a hearing, recognising the consent reached between the CEPU and the employers.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established