[2017] FWC 6158

Fair Work Act 2009

s.437 - Application for a protected action ballot order

The Australian Rail, Tram and Bus Industry Union; The Association of Professional Engineers, Scientists and Managers, Australia; The Australian Workers' Union; The Australian Municipal, Administrative, Clerical and Services Union; Construction, Forestry, Mining and Energy Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

(B2017/1116, B2017/1117, B2017/1119, B2017/1120, B2017/1121, B2017/1122, B2017/1123, B2017/1125, B2017/1126 & B2017/1127)

Proposed protected action ballot of employees of Sydney Trains and NSW Trains.

[1] On 20 November 2017, Unions NSW (Unions NSW) acting on behalf of; the Australian Rail, Tram and Bus Industry Union; The Association of Professional Engineers, Scientists and Managers; The Australian Workers' Union; the Australian Municipal, Administrative, Clerical and Services Union; the Construction, Forestry, Mining and Energy Union; the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; and, the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) (the Unions or the applicants), made applications for protected action ballot Orders. The applications were made pursuant to section 437 of the Fair Work Act 2009 (the Act). The applications were made in respect of members of the Unions who are employees of either, Sydney Trains, or NSW Trains (the employers), and whose employment is to be regulated by proposed agreements to replace the Sydney Trains Enterprise Agreement 2014, and the NSW Trains Enterprise Agreement 2014.

[2] The applications seek ballots of employees of the employers who are members of the Unions who would be covered by proposed enterprise agreements. The applications were supplemented by various Statutory Declarations and other Statements. In summary, these Statutory Declarations and Statements provided information about events involving attempts made by the Unions to reach agreement with the employers on the terms of proposed enterprise agreements.

[3] The applications have been dealt with together as the requirements of s. 442 of the Act have been satisfied. The applications were listed for Hearing before the Commission in Sydney on 23 November 2017, at which time the following appearances were recorded:

Mr T Costa from Unions NSW appeared for the Unions;

Mr A Woods of Lander & Rogers appeared, with permission, for Sydney Trains, and NSW Trains.

[4] The Commission granted permission for the Parties to be represented by lawyers or paid agents as a level of complexity had been identified from the multiple applications and in satisfaction of the requirements of s. 596 of the Act.

[5] The determination of these matters is primarily governed by the provisions of s. 443 of the Act. Section 443 is in the following terms:

"443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee."

[6] At the Hearing, the Commission confirmed that the only matter of contest between the Parties involved the period of written notice for the taking of industrial action that was to be specified in the protected action ballot Orders. The draft protected action ballot Orders provided by the Unions specified a period of 3 working days' notice, and this was the subject of contest raised by the employers.

[7] Mr Woods, who appeared on behalf of the employers, advanced an argument seeking to have the Commission provide for an extension of the written notice referred to in paragraph 414 (2) (a) of the Act, from 3 working days to 7 working days. It was submitted that the Commission should be satisfied that there were exceptional circumstances which would justify extending the notice period for the taking of any protected industrial action.

[8] Mr Woods introduced evidence in the form of two witness statements which supported the basis upon which the employers sought to have the notice period for the taking of industrial action extended to 7 working days. In summary, it was submitted that, in this instance, the exceptional circumstances related to the extensive public transport functions undertaken by the employers, and the potential implications to the general travelling public that may be impacted by the taking of any industrial action.

[9] Mr Costa, who appeared for the Unions, opposed the extension to the notice period as was sought by the employers. Mr Costa introduced evidence in the form of two witness statements which supported the proposition that a period of 3 working days would provide sufficient time for the employers to implement contingency arrangements to deal with any impacts that would arise from the taking of any industrial action. It was submitted that the capacity for contingency arrangements to deal with any impacts arising from industrial action meant that, in this instance, the Commission should not be satisfied that exceptional circumstances existed, and therefore, there was no basis upon which to extend the written notice period for the taking of industrial action.

[10] Having regard for the evidence provided, and the respective, competing submissions of the Parties, the Commission has been persuaded that exceptional circumstances exist in satisfaction of the requirements of subsection 443 (5) of the Act. In particular, in this instance, the Commission has been cognisant of the potential disruption that may be caused to the general public who regularly rely upon the availability of the extensive public transport services operated by the employers.

[11] However, exceptional circumstances in satisfaction of subsection 443 (5) of the Act has only been established in respect to the forms of industrial action specified in questions 1, 2 and 3 of the protected action ballot Orders, and it has not been established in respect to the forms of industrial action specified in questions 4 and 5 of the protected action ballot Orders. Consequently, the period of notice for the taking of industrial action will be extended to 7 working days for any form of industrial action taken pursuant to questions 1, 2 and 3, and the notice for the taking of any industrial action that is confined to that specified in questions 4 and 5 shall be 3 working days.

[12] Further, the Commission is satisfied that the applications have been made in accordance with s. 437 of the Act. Further, the Commission is satisfied that the applicants have been, and are, genuinely trying to reach an agreement with the employers of the employees who are to be balloted. In addition, the Commission is satisfied that the requirements of ss. 443, 438 and 440 of the Act have also been met.

[13] Therefore, pursuant to subsection 443 (1) of the Act, the Commission must make the protected action ballot Orders. The Orders shall be made in the terms as broadly sought by the applicants. Accordingly Orders [PR597955, PR597956, PR597957, PR597958, PR597959, PR597961, PR597962, PR597965, PR597966 and PR597968] are issued separately.

Mr T Woods of Lander & Rogers appeared Sydney Trains and NSW Trains.

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