Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Austube Mills Pty Ltd T/A Austube Mills Summary

[2023] FWC 2384

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

Austube Mills Pty Ltd T/A Austube Mills

(B2023/984)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 15 SEPTEMBER 2023

Proposed protected action ballot of employees of Austube Mills 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 Austube Mills Pty Ltd T/A Austube Mills (Austube Mills or Employer).
On 15 September 2023, the Commission was advised that Austube Mills, 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 Bradley McDougall, 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 Austube Mills, 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, and in consultation with the parties, the Commission has determined that the date by which voting is to close is 29 September 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 PR766281.
This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference in conjunction with any related matters associated with the proposed agreement. That Member will issue an Order requiring the attendance of all bargaining representatives involved 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] 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

CaseChat Overview and Summary

The Fair Work Commission considered an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order concerning certain employees of Austube Mills Pty Ltd T/A Austube Mills. The application was made under section 437 of the Fair Work Act 2009, aiming to determine whether the union's proposed ballot met the statutory requirements. Austube Mills did not object to the application, prompting the Commission to proceed with the decision without a hearing.

The legal issues before the Commission included verifying whether the union had genuinely attempted to reach an agreement with Austube Mills and whether the union had satisfied the notification time requirements and other conditions stipulated in section 443(1) of the Act. The Deputy President Hampton reviewed the evidence provided by Mr. Bradley McDougall, the union organiser, who confirmed the union's efforts to negotiate with Austube Mills. The Commission also confirmed that Democratic Outcomes Pty Ltd T/A CiVS, the appointed ballot agent, was eligible under section 468A of the Act.

In light of the evidence presented, the Deputy President Hampton concluded that the union had genuinely attempted to reach an agreement with the employer and that the notification period requirements were met. Consequently, the Commission approved the ballot order and determined the voting closure date as 29 September 2023. An Order was issued separately to manage the compulsory conciliation conference and related matters concerning the proposed enterprise agreement.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Austube Mills Pty Ltd T/A Austube Mills

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established