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

[2024] FWC 2003

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

Alstef Australia Pty Ltd

(B2024/955)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 29 JULY 2024

Proposed protected action ballot of employees of Alstef Australia 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 Alstef Australia Pty Ltd (Alstef or Employer).

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

On 29 July 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 Scott Reichman, 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 Alstef, 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 13 June 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR777633.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. 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] B2024/954.

[2] 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 Fair Work Commission was presented with an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) seeking a protected action ballot order under section 437 of the Fair Work Act 2009. The application was in relation to certain employees of Alstef Australia Pty Ltd. The Australian Manufacturing Workers’ Union (AMWU) had also made a separate application for a protected action ballot order concerning the same proposed enterprise agreement. Alstef did not object to the application, leading the Commission to determine the matter on the available papers without a hearing.

The legal issues before the Commission included whether the CEPU had fulfilled all necessary requirements to conduct the ballot under section 443(1) of the Fair Work Act, and if the timing and process for the ballot were appropriate. The CEPU submitted a declaration from Scott Reichman, an Organiser, detailing the union's efforts to reach an agreement with Alstef and its genuine attempts to negotiate. The Commission also needed to confirm the appropriateness of the ballot period and the closing date for voting, which was set at 13 June 2024.

The Deputy President was satisfied that all requirements had been met, and that the notification time for the proposed agreement was in place. Democratic Outcomes Pty Ltd (CiVS) was approved to conduct the ballot, as it was an eligible agent under section 468A of the Act. The closing date for voting was determined to be 10 working days from the issuance of the order, which aligned with the period requested in the application. Consequently, the Commission granted the CEPU's application for the ballot order, and the matter was assigned to another Commission member to conduct a compulsory conciliation conference. An order was issued for the conference, and directions were likely to follow to ensure the parties were prepared to negotiate meaningfully.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established