Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) v MSF Sugar Pty Ltd

[2025] FWC 1103

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)
v

MSF Sugar Pty Ltd

(B2025/644)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 22 APRIL 2025

Proposed protected action ballot of employees of MSF Sugar Pty Ltd

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU 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 MSF Sugar Pty Ltd (MSF Sugar or Employer).

I note that the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU)[1] and the Australian Workers Union (AWU)[2] has made a separate applications for a protected action ballot order in relation to the same proposed enterprise agreement.

On 17 April 2025, the Commission was advised that the Employer, in effect, did not object to the Application as amended to clarify the intended ballot period.

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 Robert Hill, Organiser, setting out the steps taken by the CEPU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with MSF Sugar, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS 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 8 May 2025.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR786255.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matters. 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] B2025/638

[2] B2025/641

[3] This is, in effect, 10 working days from the making of the order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) lodged an application under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to employees of MSF Sugar Pty Ltd. The application sought to hold a ballot for employees to vote on protected industrial action due to an impasse in enterprise agreement negotiations. The application was made alongside similar applications by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and the Australian Workers Union, all relating to the same proposed enterprise agreement.

The legal issues before the Fair Work Commission (FWC) included whether the CEPU had satisfied the requirements under section 443(1) of the Fair Work Act to hold a ballot, and whether the proposed ballot period was appropriate. The CEPU needed to demonstrate that it had genuinely attempted to negotiate with MSF Sugar and that a notification time had passed. Additionally, the FWC needed to determine a suitable closing date for the ballot.

The Deputy President of the FWC, Hampton, concluded that the CEPU had met the requirements under section 443(1) of the Fair Work Act, as evidenced by the declaration of Robert Hill, Organiser for the CEPU, which outlined the union's negotiation efforts. The Deputy President also determined that the notification time for the proposed enterprise agreement had passed and that the union genuinely sought to reach an agreement with MSF Sugar. The Deputy President set the closing date for the ballot as 8 May 2025, which aligned with the period sought in the application. The decision was made on the papers, as MSF Sugar did not object to the ballot period.

This decision led to the issuing of an order to conduct the ballot through Democratic Outcomes Pty Ltd (CiVS), which was approved as an eligible ballot agent. The matter was to be assigned to another FWC member for a compulsory conciliation conference, and all bargaining representatives were required to attend. Directions were likely to be issued to ensure that the parties were prepared for meaningful negotiations at the conference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established