Association of Professional Engineers, Scientists and Managers, Australia, The v Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd T/A Evoenergy

[2023] FWC 2368

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

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

Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd T/A Evoenergy

(B2023/980)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 15 SEPTEMBER 2023

Proposed protected action ballot of employees of Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd Trading As Evoenergy

The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd T/A EvoEnergy (EvoEnergy or Employer).
On 15 September 2023, the Commission was advised that EvoEnergy, in effect, did not object to the Application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Mr Daniel Griffin, Organiser, setting out the steps taken by the APESMA in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with EvoEnergy, 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 Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act [1]and consequently is authorised to conduct the ballot.

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 October 2023.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR766241.
This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference in conjunction with any related matters associated with the proposed agreement. That Member will issue an Order requiring the attendance of all bargaining representatives involved 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.

DEPUTY PRESIDENT

[1] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[2] This reflects, in effect, the period set out in the proposed order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) sought an order under the Fair Work Act 2009 for a protected action ballot for certain employees of Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd, trading as Evoenergy. The application was made to the Fair Work Commission. Evoenergy, the employer, did not object to the application, leading to the matter being determined on the papers without a hearing. The application was supported by the declaration of Mr. Daniel Griffin, an Organiser for APESMA, who attested to the union's efforts in bargaining with Evoenergy and its genuine attempts to reach an agreement.

The legal issues before the Commission included whether the requirements under section 443(1) of the Fair Work Act had been met, which necessitated a notification period for the proposed agreement and the union's genuine efforts in bargaining. Additionally, the Commission needed to determine an appropriate closing date for the ballot, as required under section 443(3)(c) of the Act. Furthermore, the Commission had to ensure that the ballot agent, Democratic Outcomes Pty Ltd t/a CiVS, was eligible and authorised to conduct the ballot.

The Deputy President concluded that APESMA had satisfied all the statutory requirements for a protected action ballot. The notification period was confirmed, and the union's genuine bargaining efforts were acknowledged. The Commission also determined that the ballot voting should close on 4 October 2023, setting the ballot period for the purpose of s.448A(2) of the Act. The Deputy President ordered that the ballot agent, CiVS, was eligible to conduct the ballot and issued an order accordingly. The matter was assigned to another Member of the Commission for the compulsory conciliation conference and related negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established