The Association of Professional Engineers, Scientists and Managers, Australia v Metro Trains Melbourne Pty. Ltd. T/A Metro Trains Melbourne

[2023] FWC 2046

[2023] FWC 2046

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

The Association of Professional Engineers, Scientists and Managers, Australia
v

Metro Trains Melbourne Pty. Ltd. T/A Metro Trains Melbourne

(B2023/844)

COMMISSIONER CONNOLLY MELBOURNE, 16 AUGUST 2023

Proposed protected action ballot of employees of Metro Trains Melbourne Pty. Ltd. T/A Metro Trains Melbourne.

1. This is an application by the Association of Professional Engineers, Scientists and Managers (APESMA) made under s.437 of the Fair Work Act 2009 (Act) for a protected ballot order (PABO) in relation to certain employees of Metro Trains Melbourne Pty Limited T/A Metro Trains Melbourne (Metro Trains or Employer)

1. The application was lodged on 15 August 2023. 

1. On Wednesday 16 August 2023, the matter was allocated to me for determination.

1. The group of employees to be balloted are those who will be covered by the proposed enterprise agreement and are members of and are represented by the bargaining representative, the Applicant. The agreement is proposed as a replacement agreement for the Metro Trains Melbourne Infrastructure Enterprise Agreement 2019, the nominal expiry date of which was 30 June 2023.

1. The proposed agreement is not a greenfields agreement, or a multi-enterprise agreement that is a cooperative workplace agreement.  There has also been a notification time for the proposed agreement and the application and accompanying documentation is in order.  The application and proposed order have also been provided by APESMA to Metro Trains, the other bargaining representatives and the proposed ballot agent.  This meets the various requirements for the making of a PABO set out in the Act.[1]

1. The application was supported by a statutory declaration of Mr Warren Wingrove, a Union Organiser for APESMA. The declaration confirmed 8 bargaining meetings have occurred between April 2023 and August 2023 and identified that APESMA has been, and is, genuinely trying to negotiate the terms of the proposed enterprise agreement with the Employer. Further, that APESMA provided its log of claims to the Employer on or around 2 May 2023 and explained its claims.  The declaration stated that the parties remain unable to agree on several issues.

1. APESMA’s application sought that the protected action ballot close at 10:00 am on Tuesday, 29 August 2023.

1. On Wednesday 16 August 2023, the Commission was advised that Metro Trains did not intend to oppose the application but indicated that it intended to raise concerns about whether the proposed order should be made.  Correspondence provided to the registry by Mr Brad Nash, Metro Trains Senior Workplace Relations Manager advised the Commission to this effect.

1. Subsequently, my chambers issued a Notice of Listing to the parties to attend a Conference and Hearing to be convened to consider and determine the application at 1:00pm on Wednesday, 16 August 2023, by Video using Microsoft Teams.

1. This Hearing had previously been listed to determine a related PABO application made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical Trades Union (Victorian Branch) (CEPU), lodged on 14 August 2023.  In accordance with the provisions of s 442 of the Act, I determined to seek the views of the parties on whether the applications should be dealt with together.

1. Immediately prior to the commencement of the Hearing, my chambers was provided with an amended Draft Order by the CEPU which included an additional clause to extend the notice period to 5 working days.  The CEPU indicated parties would address the correspondence in proceedings.

The Hearing

1. Mr Scott Crawford appeared representing APESMA, along with Mr Warren Wingrove.  The CEPU was represented by Mr Yasser Bakri (Of Counsel) and Mr Matthew Minucci (Of Counsel) representing Metro Trains.  Both legal representatives sought leave to appear, and leave was granted in the circumstances in accordance with s596 of the Act. 

1. Parties were initially invited to advise the Commission if they had any objections to the PABO applications of the CEPU and APESMA being dealt with together in these proceedings.  The parties had no objections. Being satisfied on the evidence that the provisions of s 442 have been met and that there would be no delay to the determination of any of the applications, the applications were dealt with together at the Hearing.

1. In its submissions, representatives for the CEPU addressed the amended Order which as provided to chambers prior to the Hearing.  The CEPU indicated there had been discussions between the parties earlier in the day to seek to address the concerns of the Respondent and that an understanding had been reached such that the full terms of the amended Order had addressed the concerns and would not be objected to by the Respondent.

1. In its submissions, representatives for Metro Trains affirmed that position put by the CEPU and indicated that a PABO being made by this Commission in the full terms as set out in the amended Draft Order provided to my chambers would not be objected to or opposed by the Respondent.

1. With respect to the application by APESMA, representatives for Metro Trains indicated that they would welcome an amended application being submitted.

1. Representatives for the Applicant indicated that they would be prepared to provide an amended application for consideration.  During the course of the Hearing an amended Draft Order was provided by APESMA to the Respondent along with my chambers and Metro Trains indicated that they would also not object to a PABO being made in the full terms set out in this amended Draft Order. 

1. I am satisfied that the full terms of the amended Draft Order provided by APESMA to their application meet the requirements of the Act and they have been reflected in the Order ultimately made by this Commission.

Conclusions

1. On the basis of all the materials presented before me, including the declaration of Mr Warren Wingrove, and for the reasons set out above I am satisfied that APESMA has been, and is, genuinely trying to reach an agreement with Metro Trains and that there is a notification time in relation to the proposed agreement and that all of the requirements of s.443(1) of the Act have been met.

1. The ballot is to be conducted by Vero Engagement & Voting Systems Solutions Pty Ltd T/A Vero Voting (Vero Voting). Vero Voting has recently been approved as an eligible protected ballot agent under s 468A of the Act[2] and consequently is authorised to conduct the ballot.  The ballot period is proposed to commence from the date the PABO has been issued by the Commission. 

1. An Order has been separately issued in PR765248.

1. This matter will shortly be listed for a s.448A conference. An order requiring the bargaining representatives’ attendance at the conference will thereafter be issued. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

COMMISSIONER

Appearances (via videoconference):

Mr S Crawford on behalf of the Applicant.
Mr M Minucci on behalf of the Respondent.

Hearing details:

2023.
Melbourne.
16 August.

[1] ss. 437, 438 and 440 of the Act.

[2] [2] Vero Engagement & Voting Solutions T/A Vero Voting [2023] FWC 1531.

Printed by authority of the Commonwealth Government Printer

<PR765247>