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

[2024] FWC 595

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

ASC Pty Ltd

(B2024/186)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 6 MARCH 2024

Proposed protected action ballot of employees of ASC Pty Ltd

This is an application by 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).

I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)[1] and the Australian Workers’ Union (AWU)[2] have made separate applications for a protected action ballot order in relation to the same proposed enterprise agreement.

On 5 March 2024, the Commission was advised that ASC, 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 Mr Simon Pisoni on behalf of the CEPU, 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 Australian Electoral Commission. 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 22 April 2024.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR772092.

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 (B2024/184 and B2024/191). 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] B2024/184.

[2] B2024/191.

[3] This is, in effect, 30 working days from the making of the Order, as sought in the application. It is also the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) under section 437 of the Fair Work Act 2009 for a protected action ballot order regarding certain employees of ASC Pty Ltd (ASC). The CEPU sought to conduct a ballot to determine if its members would support protected industrial action in relation to a proposed enterprise agreement. The AMWU and AWU had also separately applied for a ballot order concerning the same proposed agreement, but ASC did not object to the CEPU's application. Given ASC's lack of objection, the Deputy President Hampton decided to proceed with the determination on the submitted documents without a hearing.

The legal issues before the Court involved whether the CEPU had fulfilled all the requirements under section 443(1) of the Fair Work Act to proceed with the ballot. Specifically, the Deputy President needed to confirm if the notification time for the proposed agreement had been met and if the CEPU had genuinely attempted to reach an agreement with ASC. The Deputy President reviewed the declaration by Mr Simon Pisoni on behalf of the CEPU, which outlined the steps taken in bargaining and affirmed the union's genuine efforts to negotiate with ASC.

In reaching the decision, the Deputy President found that all the requirements for a protected action ballot had indeed been satisfied. The Deputy President concluded that a notification period existed and that the CEPU had genuinely tried to reach an agreement. Consequently, the Deputy President granted the application for a ballot order and determined that voting would close on 22 April 2024. This date also set the ballot period for the purposes of section 448A(2) of the Fair Work Act. The Deputy President further ordered that the Australian Electoral Commission would conduct the ballot and assigned the matter to another Commission member for a compulsory conciliation conference.

This decision ensures that the CEPU can proceed with the ballot to gauge its members' support for potential protected industrial action, while also setting the timeline for the ballot and preparing for further conciliation efforts to resolve the dispute over the proposed enterprise agreement.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established