Peter Gary Collis v Keolis Downer Adelaide Pty Ltd Summary

[2024] FWC 999

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Peter Gary Collis
v

Keolis Downer Adelaide Pty Ltd

(B2024/444)

DEPUTY PRESIDENT HAMPTON

SYDNEY, 16 APRIL 2024

Proposed protected action ballot of employees of Keolis Downer Adelaide Pty Ltd

This is an application by Peter Gary Collis (Mr Collis 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 Keolis Downer Adelaide Pty Ltd (Keolis or Employer).

On 15 April 2024, the Respondent advised that it did not, in effect, object to the application subject to there being an extended notice period of five (5) working days in relation to the proposed forms of industrial action. This was subsequently agreed by Mr Collis.

There were however certain matters that arose from the draft order provided by Mr Collis which required further consideration. These included the scope of employees to be balloted, the ballot period and the detail of the ballot questions given that period. In the circumstances, I conducted a hearing today to deal with those aspects.

Ultimately, an amended application dealing with these issues has been developed and leave has been granted in that respect.

On the basis of the material before me, including the declaration of Mr Collis, setting out the steps taken by him in bargaining with the Employer and that he has been, and is, genuinely trying to reach agreement with Keolis, 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.

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

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

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.

An Order has been separately issued in PR773563.

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 for 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, thirty (30) working days from the date of the Order, as required by the AEC.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Peter Gary Collis v Keolis Downer Adelaide Pty Ltd, the applicant, Mr Collis, sought an order for a protected action ballot for certain employees of Keolis Downer Adelaide Pty Ltd. The matter was heard by the Fair Work Commission under section 437 of the Fair Work Act 2009. The employer did not object to the application but sought an extended notice period, which was agreed upon by Mr Collis. The hearing was held to address certain issues regarding the scope of employees to be balloted, the ballot period, and the detail of the ballot questions.

The legal issues before the court involved the interpretation of section 443 of the Act and determining whether the requirements for a protected action ballot were met, particularly concerning the notice period and the exceptional circumstances that warranted an extension. The court had to consider the declaration by Mr Collis, which detailed his efforts to reach an agreement with the employer and the steps taken in the bargaining process.

The Deputy President concluded that the applicant had met the requirements of section 443(1) of the Act, and the notification time for the proposed agreement was valid. The Commission determined the closing date for voting to be 30 May 2024, which also set the ballot period. It was established that exceptional circumstances justified an extended notice period for the industrial action. The Commission issued an Order and assigned the matter to another Member for a compulsory conciliation conference.

The final orders included the extension of the notice period to five working days and the setting of the voting closing date as 30 May 2024. The matter was to be reassigned to another Member of the Commission to conduct the compulsory conciliation conference, with directions likely to be issued to ensure meaningful negotiations between the parties.

Peter Gary Collis v Keolis Downer Adelaide Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established