Fair Work Act 2009

s.437 - Protected action

Proposed protected action ballot of employees of Keolis Downer Hunter Pty Ltd - employer opposition - not genuinely trying to reach agreement - request for extended notice period - order made - notice period not extended.

• [1] The Australian Rail, Tram and Bus Industry Union (RTBU) has made an application under s.437 of the Fair Work Act 2009 (FW Act) for a protected action ballot order in relation to certain employees of Keolis Downer Hunter Pty Ltd (KDH). KDH provides public bus transport services in Newcastle. The application was filed on 29 August 2025.

• [2] On 1 September 2025, the Commission was advised that KDH opposes the application. KDH outlined the following reasons for opposing the application:

1. The RTBU has not been adhering to the good faith bargaining requirements.

1. The industrial action described in the application will result in significant disruption to the Newcastle community, including for vulnerable community members. A notice period of three working days is not sufficient for the proposed industrial action and a greater notice period will enhance KDH's ability to minimise the impact on the public.

• [3] Given KDH's opposition, I listed the application for hearing on 1 September 2025 via video.

• [4] Jemimah Cooper (Legal Officer) represented the RTBU at the hearing on 1 September 2025. KDH was represented by Will Treglown (Human Resources Business Partner).

• [5] In addition to its Form F34 application and an accompanying draft order, the RTBU relied on a Form F34B declaration made by Katie O'Neill (Industrial Officer) on 29 August 2025, and a witness statement from Ms O'Neill dated 1 September 2025.

• [6] Ms O'Neill provided evidence that bargaining commenced in late November 2024 and that around 14 bargaining meetings have been held. Ms O'Neill provided evidence that the RTBU has provided a log of claims and has agreed to reduce its claims during bargaining. Ms O'Neill provided evidence about a previous protected industrial action ballot order application and a separate s.240 bargaining dispute. Ms O'Neill provided evidence that the bargaining dispute led to the parties agreeing to several steps to try and progress bargaining. Ms O'Neill provided evidence about recent events in bargaining including during a meeting on 25 August 2025. Ms O'Neill was not cross-examined on her evidence.

• [7] KDH relied on a witness statement from Emmanuel Genlot (General Manager) dated 1 September 2025. Mr Genlot provided evidence about his involvement in the bargaining process. Mr Genlot provided evidence that the RTBU had failed to provide sufficient details in its log of claims and complained about its conduct during a bargaining meeting on 25 August 2025. Mr Genlot provided evidence about the potential impact of the industrial action and that three working days of notice would not be sufficient for the community to be notified and for alternative transport arrangements to be put into place. Mr Genlot was not cross-examined on his evidence.

• [8] The Full Bench in Esso[1] provided the following summary of the key authorities in terms of assessing whether an applicant is genuinely trying to reach agreement (endnotes omitted):

"[34] In Total Marine Services Pty Ltd v Maritime Union of Australia (Total Marine) the Full Bench upheld an appeal from a decision to grant an application for a protected action ballot. The Full Bench held that the member at first instance had erred in concluding that the applicant had genuinely tried to reach an agreement within the meaning of s.443(1)(b) in circumstances where certain claims were 'put to one side'; the negotiations involved limited face to face meetings and limited articulation of many of the claims; many items were only set out in a list of headings, being neither explained nor discussed; and no wage claim was specified. In the course of its decision the Full Bench expressed the following views about s.443(1)(b):

'[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.

[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.'

[35] For our part, for reasons we articulate later, we agree with the observations in paragraph [31] and the first three sentences of paragraph [32] of Total Marine, set out above. We note that the observations which follow the first three sentences in paragraph [32] are obiter and although we do not consider that they should be understood as attempting to establish any binding decision rule, nonetheless they are, with respect, somewhat inconsistent with the earlier expressed proposition (with which we agree) that it is not useful to articulate any alternative test or criteria to the words of s.443(1)(b). We note that similar reservations were expressed by the majority of the Full Bench in JJ Richards and Sons Pty Ltd v TWU (JJ Richards No.1) and by the Full Bench in Farstad Shipping (Indian Pacific) Pty Ltd v MUA (Farstad)."

• [9] The Full Bench in Esso also stated the following regarding the interaction between the good faith bargaining requirements and the concept of genuinely trying to reach agreement:

_"_In any event, while there is a relationship between the good faith bargaining requirements and the concept of genuinely trying to reach an agreement, it would be wrong to conflate these terms. A party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach an agreement."[2]

• [10] The parties have been regularly attending bargaining meetings since late 2024. The parties have articulated their respective claims. The Commission has provided the parties with assistance via bargaining dispute conferences.

• [11] The main issue raised by KDH concerns events at a recent bargaining meeting on 25 August 2025. The parties have differing views about who caused this meeting to be unproductive. In any event, even if Mr Genlot's evidence is accepted, I do not consider it would be sufficient to establish the RTBU has not been genuinely trying to reach agreement given the array of other events that have occurred during the bargaining process.

• [12] I find that the RTBU has been, and is, genuinely trying to reach agreement with KDH.

• [13] The Commission has a discretion to extend the minimum notice period for industrial action if it is satisfied that there are exceptional circumstances justifying a longer notice period.[3] The determination of whether the circumstances in a particular case are exceptional involves an evaluative judgment and must be based on findings of fact about the circumstances that are said to be exceptional.[4]

• [14] KDH relies on the witness statement of Mr Genlot to establish there are exceptional circumstances which justify a longer minimum notice period than three working days. I am conscious that Mr Genlot's witness statement has been prepared in a tight timeframe. However, Mr Genlot's witness statement largely just reflects his general opinion about the potential impact of the proposed industrial action, particularly in relation to limitations on the number of kilometres that can be driven per shift and on the operation of charter services. Mr Genlot's evidence is that the NSW Government may be able to organise alternative public transport options from other regions but says the other options are "limited." Mr Genlot has not provided specific evidence about the options available to minimise the impact of the industrial action and in relation to what additional steps could be taken if a longer notice period was provided. I would be reluctant to extend the minimum notice period from three working days to seven working days without a detailed understanding of what practical differences would arise from an extended period of notice.

• [15] There is also force to the RTBU's submission that a previous protected action ballot conducted during the current bargaining process authorised types of industrial action that are broader in effect than the limits on kilometres to be driven per day and on the operation of charters. The standard minimum notice period of three working days applied in relation to those broader forms of industrial action. KDH has not provided any evidence regarding difficulties that have arisen from having a minimum of three working days of notice when industrial action has previously been taken by RTBU members, including a 24-hour stoppage.

• [16] Much greater clarity about the nature and potential effect of the industrial action will emerge once written notice of any protected industrial action is provided.[5] The FW Act provides mechanisms for the Commission to prevent significant economic harm and threats to safety due to protected industrial action. Those mechanisms are the making of orders under ss.423 to 430 of the FW Act.

• [17] I am not satisfied on the evidence before me that there are exceptional circumstances that justify an extension of the minimum notice period for the industrial action beyond three working days. I determine the minimum notice period for the protected industrial action will be three working days.

• [18] I am satisfied that there is a notification time in relation to the proposed agreement and that all the other requirements in s.443(1) of the FW Act have been met.

• [19] The ballot is to be conducted by TrueVote Pty Ltd (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s.468A of the FW Act[6] and consequently is authorised to conduct the ballot.

• [20] For the purposes of s.443(3)(c) and s.448A(2) of the FW Act, I have determined the date by which voting closes for the ballot will be 10 working days from the date of this Order, which is 15 September 2025.

• [21] An order has been separately issued in [PR791298].

• [22] This matter will be assigned to a Member of the Commission to conduct the s.448A conference and this Member will issue the Order requiring attendance 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.

[1] Esso Australia Pty Ltd v AMWU, CEPU and RTBU [2015] FWCFB 210 ('Esso').

[4] National Tertiary Education Industry Union v Charles Darwin University [2018] FWCFB 4011 at [23].

[5] Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union [2017] FWCFB 4740 at [44].

[6] TrueVote Pty Ltd [2023] FWC 1446.

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