Nerida Mullally v Sydney Trains

[2024] FWC 2878

[2024] FWC 2878

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Nerida Mullally
v

Sydney Trains

(B2024/1350)

COMMISSIONER CRAWFORD SYDNEY, 16 OCTOBER 2024

Proposed protected action ballot of employees of Sydney Trains

1. This is an application by Ms Nerida Mullally (Crew Support Officer) made under s.437 of the Fair Work Act 2009 (FWAct) for a protected action ballot order in relation to employees of Sydney Trains that have appointed Ms Mullally as their bargaining representative for a proposed agreement.

1. On 15 October 2024, the Commission was advised that Sydney Trains objected to parts of the application. Sydney Trains indicated it did not have evidence that some of the employees listed in the application had appointed Ms Mullally as their bargaining representative. Sydney Trains also argued one of the ballot questions was ambiguous. Finally, Sydney Trains argued that there are exceptional circumstances that justify a longer written notice period of seven working days for the industrial action proposed to be the subject of the ballot.

1. Given Sydney Trains’ objections, I listed a hearing for 16 October 2024 via video.

1. Ms Mullally represented herself at the hearing. I granted permission for Sydney Trains to be represented by Alice DeBoos from Kingston Reid on the basis that granting permission would enable the matter to be dealt with more efficiently. This was not opposed by Ms Mullally. Several Sydney Trains employees that have also been appointed as bargaining representatives also attended the hearing, but did not provide any evidence or submissions.

1. During the hearing, Ms Mullally agreed to provide Sydney Trains with instruments of appointment to confirm she was the bargaining representative for all the employees named in her application. I was provided with confirmation the relevant instruments of appointment had been provided to Sydney Trains after the hearing concluded.

1. Sydney Trains did not press its argument regarding the ambiguity of one of the proposed ballot questions. 

1. Ms Mullally ultimately did not oppose Sydney Trains’ argument that there are exceptional circumstances justifying a written notice period of seven working days for the proposed industrial action. However, Ms Mullally adopted that position on a pragmatic basis to avoid the need for further evidence to be filed by both parties. Ms Mullally did not concede that the arguments she had raised in opposition to the longer notice period did not have merit.    

1. On the basis of the material before me, including the declaration of Ms Mullally, setting out the steps taken by Ms Mullally in bargaining with Sydney Trains and that she has been, and is, genuinely trying to reach agreement with Sydney 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 FW Act have been met.

1. I am satisfied that there are exceptional circumstances that justify a longer written notice period of seven working days in accordance with s.443(5) of the FW Act.

1. The ballot is to be conducted by the Australian Electoral Commission (AEC).

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

1. An Order has been separately issued in PR780324.

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.

COMMISSIONER

Appearances:

Ms Mullally representing herself.

Ms DeBoos from Kingston Reid appearing on behalf of Sydney Trains.

Hearing details:

2024.
Sydney (by video via Microsoft Teams)
16 October.

[1] This is, in effect, 30 working days from the making of the Order as required by the AEC.

Printed by authority of the Commonwealth Government Printer

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