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

[2024] FWC 1065

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
v

Laminex Group Pty Limited

(B2024/471)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 24 APRIL 2024

Proposed protected action ballots of employees of Laminex Group Pty Limited

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or Applicant) has made an application under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Laminex Group Pty Limited (Laminex or Employer).

I note that the Construction, Forestry and Maritime Employees Union and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) have made separate applications for a protected action ballot order in relation the same proposed agreement.[1]

On 23 April 2024, the Commission was advised that Laminex 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 Daniel Bessell, Organiser setting out the steps taken by the CEPU in bargaining with the Employer and that they have been, and are, genuinely trying to reach agreement with Laminex, 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 (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act[2] 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 in each matter is 10 May 2024.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

The Order has been separately issued in PR773862.

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 for 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] B2024/472 and B2024/473.

[2] [2023] FWC 1400.

[3] This is, in effect, ten (10) working days from the date of the Order, as 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) has applied to the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning employees of Laminex Group Pty Limited. The application was made in response to ongoing negotiations over a proposed enterprise agreement. Notably, two other unions, the Construction, Forestry and Maritime Employees Union and the Australian Manufacturing Workers’ Union, have also applied for ballot orders in relation to the same proposed agreement. Laminex did not object to the CEPU's application, leading the Deputy President to decide the matter on the papers without a hearing.

The central legal issues before the Deputy President were whether the CEPU had fulfilled the requirements to hold a protected action ballot, including demonstrating that there was a notification time in relation to the proposed agreement and that all the statutory conditions under section 443(1) of the Act had been met. Additionally, the Deputy President had to determine a closing date for the ballot voting period as required by section 443(3)(c) of the Act. The Deputy President also needed to confirm that the ballot agent, Democratic Outcomes Pty Ltd (CiVS), was eligible and authorised to conduct the ballot.

The Deputy President found that the CEPU had indeed fulfilled all the necessary conditions to hold a protected action ballot. The evidence presented, including a declaration by Daniel Bessell, Organiser of the CEPU, showed that the union had genuinely attempted to reach an agreement with Laminex. Therefore, the Deputy President was satisfied that a notification time existed for the proposed agreement. Furthermore, the Deputy President approved CiVS as the authorised ballot agent, having already determined its eligibility under section 468A of the Act. Finally, the Deputy President set the closing date for the ballot voting period as 10 May 2024, ensuring compliance with section 443(3)(c) of the Act.

The final orders were issued separately, and the matter will be assigned to another Member of the Commission for the compulsory conciliation conference. This conference aims to ensure that meaningful negotiations occur, with directions likely to be issued to prepare the parties for effective participation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established