Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Alstom Transport Australia Pty Limited Summary

[2025] FWC 451

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

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

Alstom Transport Australia Pty Limited

(B2025/241)

DEPUTY PRESIDENT O’KEEFFE

PERTH, 14 FEBRUARY 2025

Proposed protected action ballot of employees of Alstom Transport Australia Pty Limited

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 Alstom Transport Australia Pty Limited (Alstom 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 12 February 2025, the Commission was advised that the Employer objected to questions 3 and 4 on the application, which involved stoppages for the purposes of engaging in social media activities. Both parties provided me with submissions on the admissibility of those questions and a hearing was scheduled for 14 February 2025 to determine the matter. However, prior to hearing I convened a conference between the parties and the CEPU agreed to withdraw those two questions. With the withdrawal of those questions Alstom did not oppose the order.

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 Andy Giddens, Assistant State Secretary, 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 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 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 3 March 2025[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued on 14 February 2025 [PR784383].

I will issue a separate order and directions to the parties for the s.448A conference which will be held before me.

DEPUTY PRESIDENT

[1] B2025/238

[2] This is, in effect, 10 working days from the anticipated commencement of the ballot and was the date 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) applied to the Fair Work Commission for a protected action ballot order under section 437 of the Fair Work Act 2009. The application was made in relation to certain employees of Alstom Transport Australia Pty Limited. The union sought to conduct the ballot to facilitate the negotiation of an enterprise agreement. Alstom objected to specific questions proposed for the ballot, particularly those related to stoppages for social media activities. Despite Alstom's objections, the union withdrew these questions, leading to the employer's withdrawal of its opposition to the ballot.

The legal issues before the Deputy President were whether the union had genuinely attempted to reach an agreement with the employer and whether the ballot could proceed as requested. The Deputy President needed to determine if the union had met all the requirements under section 443 of the Act, including the notification period and the genuine attempt to negotiate. Additionally, the Deputy President had to decide on the admissibility of the proposed ballot questions, particularly those concerning social media activities.

The Deputy President examined the evidence presented by the union, including the declaration by Andy Giddens, Assistant State Secretary, detailing the union's efforts in bargaining with the employer. The Deputy President found that the union had indeed been genuinely trying to reach an agreement and that all necessary requirements for the ballot had been met. The questions regarding social media activities were withdrawn, and thus no longer a point of contention. Consequently, the Deputy President decided to proceed with the determination on the papers without a hearing. The Deputy President authorised the ballot to be conducted by Democratic Outcomes Pty Ltd and set the closing date for voting as 3 March 2025.

The Fair Work Commission issued an order permitting the protected action ballot to proceed. The order also established the closing date for voting and authorised the specified ballot agent. A separate order and directions for a section 448A conference were issued to be held before the Deputy President.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Alstom Transport Australia Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established