Australian Municipal, Administrative, Clerical and Services Union (052V) v Kogan Creek Power Pty Ltd T/A CS Energy Pty Ltd

[2023] FWC 2379

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Municipal, Administrative, Clerical and Services Union (052V)
v

Kogan Creek Power Pty Ltd T/A CS Energy Pty Ltd

(B2023/981)

DEPUTY PRESIDENT DOBSON

BRISBANE, 18 SEPTEMBER 2023

Proposed protected action ballot of employees of Kogan Creek Power Pty Ltd

This is an application by the Australian Municipal, Administrative, Clerical and Services Union (052V) (The Services Union or Union) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Kogan Creek Power Pty Ltd T/A CS Energy Pty Ltd (CS Energy or Employer).

On 15 September 2023, the Commission was advised by the Employer that it did not object to the Application on the basis that the proposed order be amended in relation to the notice to be given of industrial action under s.414(2)(b) of the Act. The Union consented to that variation.

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 Ben Ellis, Senior Industrial Officer for the Services Union, setting out the steps taken by the Union in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with CS Energy, 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.

I am satisfied that there are relevant exceptional circumstances required by s.443(5) of the Act, justifying a seven (7) working days period of written notice for the purposes of s.414(2)(b) of the Act, when taking industrial action as defined in Questions 1, 2, 3, 4, 5, 6, 7, 8, 9 and 16.

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 25 September 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 PR766267.

This matter will be listed for the conduct the s.448A compulsory conciliation conference before me in conjunction with any related matters associated with the proposed agreement such as related matters B2023/900, B2023/901 and B2023/902. I 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 is, in effect, seven (7) working days from the date of effect of the Order.

Printed by authority of the Commonwealth Government Printer

< PR766266>

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union (052V) has applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of Kogan Creek Power Pty Ltd T/A CS Energy Pty Ltd. The application was made under section 437 of the Fair Work Act 2009. The Union seeks to conduct a ballot to authorize potential industrial action. The Employer did not object to the application but requested an amendment regarding the notice period for industrial action. The Union consented to this variation, leading to the determination of the matter on the papers without a hearing.

The legal issues before the Deputy President included whether the Union had met the notification requirements under section 443(1) of the Act, and whether the proposed seven working days' notice period for industrial action was justified under section 443(5) of the Act. The Union had to demonstrate that it had genuinely attempted to reach an agreement with the Employer and that exceptional circumstances warranted a shorter notice period. Additionally, the court had to determine the closing date for the ballot as required under section 443(3)(c) of the Act.

After reviewing the material submitted, including the Union's declaration and evidence of its bargaining efforts, the Deputy President concluded that the Union had satisfied the requirements for a protected action ballot. The Union had genuinely attempted to reach an agreement and had identified exceptional circumstances that justified the seven working days' notice period for industrial action. The closing date for the ballot was set at 25 September 2023, effectively seven working days from the date of the order. The decision also included provisions for a compulsory conciliation conference to address related matters associated with the proposed enterprise agreement.

The Fair Work Commission has issued an order granting the Union's application for a protected action ballot. The ballot will be conducted by Democratic Outcomes Pty Ltd T/A CiVS, an approved ballot agent. The order mandates a seven working days' notice period for any industrial action taken based on the ballot results. The closing date for the ballot has been set as 25 September 2023. Additionally, the Deputy President will require the attendance of all bargaining representatives at a compulsory conciliation conference to facilitate negotiations on the proposed enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established