Fair Work Act 2009

s.437 - Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Proposed protected action ballot of employees of SCT Opco Pty Ltd

• [1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of SCT Opco Pty Ltd trading as SCT Logistics (SCT Logistics). The application to the Commission was made by the CEPU on Friday 20 June 2025 and the CEPU gave contemporaneous notice of the application to SCT Logistics and the proposed protected action ballot agent.

• [2] I note that the Australian Rail, Tram and Bus Industry Union (ARTBIU) has made a separate application[1] for a protected action ballot order in relation to the same proposed enterprise agreement.

• [3] On 23 June 2025, the Commission was advised that SCT Logistics, objected to the application. SCT Logistics identified two grounds for the objection.

• [4] Firstly, that the Commission cannot be satisfied that the CEPU has been, and is, genuinely trying to reach agreement within the meaning of s 443(1)(b) of the Act.

• [5] Secondly, that one of the CEPU's four proposed ballot questions lacked clarity. In response to this objection, the CEPU informed the Commission that, it did not press the inclusion of that question in a ballot order. This was done by the CEPU in the interests of dealing with the application expeditiously.

• [6] Consequently, this decision deals with SCT Logistics objection to the application based on s 443(1)(b) and also my satisfaction of other necessary matters concerning whether a protected action ballot order may be made.

• [7] The CEPU and RTBU applications for ballot orders were heard jointly before me by way of determinative conference on 24 June 2025. In dealing with both applications together, I was satisfied of the requirements in s 442 of the Act.

• [8] A Form F34B Declaration of Mr John Islip, CEPU Union Official, dated 20 June 2025 was before me. Furthermore, a Form F34B of Mr Matthew Purcell, ARTBIU Organiser, dated 19 June 2025, was also before me in respect of the RTBU application.

• [9] At the commencement of the determinative conference, I ascertained that the following factual matters primarily derived from the Declarations were not at issue, save for an immaterial difference on a factual issue referred to in paragraph 16 below.

• [10] On 8 May 2024, SCT Logistics issued a Notice of Employee Representational Rights (NERR) under s 173 of the Act in respect of a proposed enterprise agreement. Relevant to the SCT Logistics objection, the scope of the proposed agreement in the NERR was in respect of employees who are employed as Maintenance Technicians.

• [11] The first bargaining meeting in respect of the proposed agreement occurred on 23 May 2024. The RTBU and SCT Logistics participated in this meeting.

• [12] On about 14 February 2025, SCT Logistics agreed to bargain with the CEPU. On 19 February 2025, the CEPU attended a bargaining meeting with SCT Logistics and presented a log of claims. The CEPU log of claims included a claim that the proposed agreement should cover not just persons employed as Maintenance Technicians but also persons employed as Service Support Officers (SSD[2]). The CEPU's claim that the proposed agreement also cover SSDs has been pressed by the CEPU in subsequent bargaining meetings with SCT Logistics, in particular in two of the last three meetings. SCT Logistics have rejected the CEPU's claim that the proposed agreement should also cover SSDs. In total, the CEPU and SCT Logistics have participated in five bargaining meetings, being 19 February 2025, 5 March 2025, 23 May 2025 and 2 June 2025.

• [13] SCT Logistics employ persons in classifications of Maintenance Technicians or SSDs.

• [14] Maintenance Technicians primarily perform maintenance and repair work on rolling stock in a maintenance shed. However, from time to time, Maintenance Technicians may be required to speak with train drivers to assist the train drivers with breakdowns or faults in rolling stock. The communication with train drivers will occur while the Maintenance Technicians are located either in the maintenance shed or at the service desk in the administration office.

• [15] SSDs primarily perform work at the service desk in the administration office providing technical advice to train drivers regarding breakdowns or faults.

• [16] There was a difference between SCT Logistics and the CEPU about the circumstances and extent to which SSDs may also perform maintenance or repair work on rolling stock in the maintenance shed. However, the parties agreed that resolution of this factual difference was not material to determining whether or not the CEPU was or is genuinely trying to reach agreement having regard to the objection raised by SCT Logistics.

• [17] There has been no application by the CEPU for a scope order under s 238 of the Act to resolve the difference between the CEPU and SCT Logistics regarding scope of the proposed agreement.

Consideration of Genuinely Trying to Reach Agreement

• [18] SCT Logistics objection arises under s 443(1)(b) of the Act which requires the Commission to be satisfied that an applicant for the ballot order has been, and is, genuinely trying to reach an agreement with the employer.

• [19] SCT Logistics contend that the Commission cannot be satisfied that the CEPU has been or is genuinely trying to reach agreement because the CEPU has not made an application under s 238 for a scope order to have the scope issue determined.

• [20] The CEPU contends that scope of a proposed agreement can properly be a matter of bargaining and that an applicant for a ballot order can be genuinely trying to each agreement in circumstances where the applicant is claiming a different scope, to that proposed by the employer, and has not made a scope order application

• [21] In Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368 a Full Bench held as follows in relation to the meaning of genuinely trying to reach agreement:

[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. 2 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.

• [22] Based on the material before me, I am satisfied that the CEPU has been, and is, genuinely trying to reach agreement within the meaning of s 443(1)(b). The CEPU made its claim in respect of scope in its log of claims tabled at the first bargaining meeting it attended on 19 February 2025. Furthermore, the subject of scope has been discussed between the CEPU and SCT Logistics at bargaining meetings, in particular two of the last three meetings. The fact that the CEPU has not applied for a scope order does not, in the circumstances, cause me to conclude that it has not been, and is, not genuinely trying to reach agreement.

• [23] Furthermore, I note that in Stuartholme School v Independent Education Union of Australia [2010] FWAFB 1714 at [21] (Stuartholme) it was observed that scope of a proposed agreement can be a proper subject of bargaining.

• [24] Mr Broadbent, who appears for SCT Logistics, sought to distinguish Stuartholme on the basis that it concerned a bargaining situation where the employer was seeking two separate agreements and the union was seeking 23 separate agreements, whereas in the present matter the difference between the parties concerns a much more discrete or narrower scope issue of two categories of employees being Maintenance Technicians and SSDs. He further contends that the issue of scope in the present matter is readily amenable to resolution by scope order application under s 238 of the Act and consequently, the absence of a scope order application by the CEPU tends to a conclusion that the CEPU has not, and is not, genuinely trying to reach agreement.

• [25] I do not consider that the distinction between the factual circumstances of Stuartholme and the present matter, detracts from the principle in Stuartholme being that scope of a proposed agreement can be the proper subject of bargaining. Moreover, the fact that the CEPU has chosen not to apply for a scope order, in circumstances of the scope differences between the parties in the present bargaining, does not tend to the conclusion that the CEPU has not been, or is not, genuinely trying to reach agreement

• [26] In conclusion, I reaffirm that I am satisfied that the CEPU has been, and is, genuinely trying to reach agreement with SCT Logistics.

• [27] For the purposes of s 443(1)(a), I am also satisfied that the application has been made under s 437. I am also satisfied that there is a notification time as required by s 437(2A).

• [28] The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

• [29] 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 4 July 2025. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [30] An Order has been separately issued in PR788530. Paragraph 3 of the Order sets out the group of employees who are to be balloted and this will reflect the scope sought by the CEPU for the proposed agreement.

• [31] The Commission will conduct the s 448A compulsory conciliation conference along with the other related matter involving the ARTBIU. An order will be issued 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.

Mr C Broadbent, solicitor, for the SCT Opco Pty Ltd Trading AS SCT Logistics

[2] The acronym SSD is used by the parties to describe Service Support Officers in reference to the Service Support Desk.

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