Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Atlas Programmed Marine Pty Ltd T/A Atlas Professionals Summary

[2024] FWC 997

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

Atlas Programmed Marine Pty Ltd T/A Atlas Professionals

(B2024/443)

DEPUTY PRESIDENT HAMPTON

SYDNEY, 16 APRIL 2024

Proposed protected action ballot of employees of Atlas Programmed Marine Pty Ltd T/A Atlas Professionals

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 Atlas Programmed Marine Pty Ltd T/A Atlas Professionals (Atlas or Employer).

On 15 April 2024, the Respondent advised that it did not object to the application subject to there being an extended notice period of five (5) working days in relation to the proposed forms of industrial action to which the Applicant agreed.

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

The ballot is to be conducted by the Democratic Outcomes Pty Ltd (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 29 April 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. The extended notice period of five (5) working days applies to all items listed within Clause five (5) of the Order.

An Order has been separately issued in PR773557.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives for 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] [2023] FWC 1400.

[2] This is, in effect, 8 working days from the date of the Order, as sought by the Applicant.

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 under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Atlas Programmed Marine Pty Ltd T/A Atlas Professionals. The ballot was to be conducted to allow employees to vote on proposed industrial action. The employer, Atlas Programmed Marine Pty Ltd, did not object to the application but requested an extension of the notice period for the proposed industrial action to five working days, which the union agreed to. The matter was determined on the papers without a hearing.

The legal issues that the Fair Work Commission was required to decide included whether the union had satisfied the requirements of the Act for a protected action ballot and whether there were exceptional circumstances justifying an extension of the notice period for the proposed industrial action. The Commission had to assess the application under section 437 of the Act, determine the appropriate notice period, and establish the closing date for voting in the ballot.

In deciding the matter, the Deputy President Hampton found that the union had satisfied the requirements for a protected action ballot under the Act. The Commission was satisfied that there were exceptional circumstances justifying the extended notice period of five working days for the proposed industrial action, as requested by the employer and agreed to by the union. The Deputy President concluded that the extended notice period was appropriate and authorised the ballot to be conducted by the Democratic Outcomes Pty Ltd (CiVS), which had been approved as a ballot agent. The Commission set the closing date for voting in the ballot as 29 April 2024, which was effectively eight working days from the date of the Order.

The Fair Work Commission issued an Order granting the union's application for a protected action ballot order with an extended notice period of five working days for the proposed industrial action. The Commission also assigned the matter to another Member to conduct a compulsory conciliation conference under section 448A of the Act, requiring the attendance of all bargaining representatives for the proposed enterprise agreement. Directions were likely to be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Atlas Programmed Marine Pty Ltd T/A Atlas Professionals

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established