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

[2023] FWC 2352

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

ASC Pty Ltd

(B2023/976)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 14 SEPTEMBER 2023

Proposed protected action ballot of employees of ASC Pty Ltd

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of ASC Pty Ltd (ASC or Employer).
On 13 September 2023, the Commission was advised that ASC, in effect, did not object to the application.

I observe that there is a related application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) in B2023/970. Both applications relate to the same proposed enterprise agreement.

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 Mr Mark Mocerino, 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 ASC , 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 T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act [1]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 4 October 2023.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR766193.
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, the Commission will also issue the Order requiring their attendance 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] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[2] This reflects, in effect, the period set out in the proposed Order.

Printed by authority of the Commonwealth Government Printer

< PR766192>

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) applied for an order under section 437 of the Fair Work Act 2009 to conduct a ballot for protected industrial action by employees of ASC Pty Ltd (ASC). ASC, the employer, did not object to the application, and the matter was determined on the papers. The CEPU sought to conduct the ballot to determine employee support for potential industrial action in relation to a proposed enterprise agreement. The Deputy President of the Fair Work Commission, Hampton, reviewed the application and supporting documentation, including a declaration from the CEPU Organiser, Mark Mocerino, confirming the union's good faith efforts in bargaining with ASC.

The key legal issue before the Deputy President was whether the CEPU had satisfied all the requirements under section 443(1) of the Act for conducting a protected action ballot. This included establishing a notification time for the proposed agreement and demonstrating the union's genuine attempt to reach an agreement with ASC. The Deputy President also had to determine the closing date for voting in accordance with section 443(3)(c) of the Act, which would also establish the ballot period for compulsory conciliation under section 448A(2) of the Act.

After reviewing the evidence, the Deputy President concluded that the CEPU had met all the requirements for conducting the ballot, including establishing a notification time for the proposed agreement and demonstrating its good faith bargaining efforts. The Deputy President set 4 October 2023 as the closing date for voting, which also established the ballot period for compulsory conciliation. The Deputy President also authorised CiVS, the approved ballot agent, to conduct the ballot. The matter will proceed to a compulsory conciliation conference to be conducted by another member of the Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established