Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Tasmanian Railway Pty Ltd

[2015] FWC 8210

[2015] FWC 8210

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
Tasmanian Railway Pty Ltd
(B2015/1640)

COMMISSIONER LEE MELBOURNE, 27 NOVEMBER 2015

Proposed protected action ballot of employees of Tasmanian Railway Pty Ltd.

[1] This matter involves an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) for a protected action ballot order in relation to certain employees of Tasmanian Railway Pty Ltd (the Respondent), pursuant to section 437 of the Fair Work Act 2009 (the Act).

[2] Section 443(1) of the Act states:

“(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[3] On 23 November 2015 my Chambers wrote to the Respondent and asked if they objected to the application. Mr. Kerrison from the Respondent replied to that email on 24 November 2015 in accordance with the objection and advised that the Respondent did object to the application and asked to be advised when the matter would be listed for hearing.

[4] Directions were issued for the Respondent to file materials. A hearing was convened on 26 November 2015. Mr. Ash was granted permission to appear for the Applicant. Mr. Barkley was granted permission to appear for the Respondent. Ms. Lee Archer a CEPU organiser gave evidence on behalf of the Applicant. Mr. Burden the Human Resources Manager gave evidence for the Respondent. The Respondent objected on the grounds that it was alleged that the CEPU had not been and is not presently genuinely trying to reach an agreement.

[5] At the conclusion of the evidence, the representative of the Respondent sought further instructions and subsequently advised that the Respondent no longer objected to the application and that it now agreed that the Applicant has been and is genuinely trying to reach an agreement with the employer.

[6] Having had the benefit of the witness evidence in the hearing today, I note that I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Respondent and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[7] I am satisfied that the application meets the requirement of s. 437 of the Act. I am satisfied that the application meets the requirements of S.438 of the Act.

[8] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order PR574471 will be issued concurrently with this decision.

[9] I note that at the conclusion of the proceedings before me on 26 November 2015 that the Applicant made an application for an order for costs pursuant to S. 611 (2) of the Fair Work Act 2009. The parties resolved that application by mutual agreement and as a result the application for costs was not further pressed by the Applicant and is dismissed.

COMMISSIONER

Appearances:

W Ash appeared for the Applicant

D Barkley appeared for the Respondent

Hearing details:

2015

Melbourne and Hobart (by video link)

November 26

Printed by authority of the Commonwealth Government Printer

<Price code A, PR574466>