Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Anglo Coal (Capcoal Management) Pty Limited

[2024] FWC 3002

[2024] FWC 3002

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

Anglo Coal (Capcoal Management) Pty Limited

(B2024/1407)

DEPUTY PRESIDENT WRIGHT SYDNEY, 30 OCTOBER 2024

Proposed protected action ballot of employees of Anglo Coal (Capcoal Management) Pty Ltd

1. 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 Anglo Coal (Capcoal Management) Pty Limited (Anglo Coal or Employer). 

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

1. On 29 October 2024, the Commission was advised that the Employer, in effect, did not object to the Application on the condition that the following safety undertaking is incorporated into the CEPU’s notices of industrial action:

The ETU undertakes to ensure that in an emergency situation where there is a risk to personal health and safety and where no other workers are available, ETU members will be available to perform work. ETU members will not engage in industrial action that would endanger the life, personal safety, health or welfare of the population or part thereof.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing. 

1. On the basis of the material before me, including the declaration of Craig Thomas, State 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 Anglo Coal, 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. 

1. 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. 

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

1. An Order has been separately issued in PR780740.

1. 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. To the extent that this matter involves any additional bargaining representatives, that Member will issue an Order requiring their attendance 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] B2024/1406.

[2] This is, in effect, 10 working days from the date of the Order, and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

<PR780741>