Australian Municipal, Administrative, Clerical and Services Union v CS Energy Limited

[2024] FWC 1528

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Municipal, Administrative, Clerical and Services Union
v

CS Energy Limited

(B2024/753)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 13 JUNE 2024

Proposed protected action ballot of employees of CS Energy Limited

This is an application by the Australian Municipal, Administrative, Clerical and Services Union (ASU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of CS Energy Limited (CS Energy or Employer).

On 12 June 2024, the Commission was advised that the Employer, 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 Neil Henderson, Branch Secretary, setting out the steps taken by the ASU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with it, 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 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.

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 28 June 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. The extended written notice period of seven (7) calendar days applies to questions 1, 2, 3, 8, 10, 11, 12, 13 and 14, listed within Clause five (5) of the Order. The default period of three (3) working days written notice continues to apply to other forms of action set out in the Order.

An Order has been separately issued in PR775929.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order 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.

DEPUTY PRESIDENT

[1] This is, in effect, 11 working days from the making of the Order as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union (ASU) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order regarding certain employees of CS Energy Limited (CS Energy). The application was made due to ongoing disputes in bargaining for an enterprise agreement. CS Energy did not object to the application, leading the Commission to determine the matter based on the submitted documents. The Commission was satisfied that the ASU had genuinely attempted to reach an agreement with CS Energy and that all requirements under the Act for conducting the ballot were met.

The legal issues before the Commission included whether the ASU had taken sufficient steps to bargain in good faith with CS Energy, and if the requirements for a protected action ballot under the Act were fulfilled. Additionally, the Commission had to determine the appropriate notice period for the proposed industrial action, considering the exceptional circumstances outlined by the ASU. The Commission concluded that the ASU had met the criteria for a protected action ballot and was satisfied that there were exceptional circumstances justifying an extended notice period for certain types of industrial action.

In its decision, the Commission granted the ASU's application for a protected action ballot, setting the closing date for voting as 28 June 2024. An extended notice period of seven calendar days was established for specific forms of industrial action, while the default three working days notice period applied to other actions. The Commission also directed that a compulsory conciliation conference be held, with further directions to ensure meaningful negotiations between the parties. The decision was made without a hearing due to CS Energy's lack of objection to the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established