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

[2024] FWC 2538

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

Batchfire Callide Management Pty Ltd

(B2024/1223)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 17 SEPTEMBER 2024

Proposed protected action ballot of employees Batchfire Callide Management Pty Ltd

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 Batchfire Callide Management Pty Ltd (Batchfire or Employers).

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

On 17 September 2024, the Commission was advised that the Employer, in effect, did not object to the Application as amended following discussions between the parties.

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 Craig Thomas, 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 Batchfire, 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 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.

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

An Order has been separately issued in PR779324.

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. That Member will issue an Order requiring the attendance of all bargaining representatives 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] B2024/1222.

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide on an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) to conduct a ballot for protected action among the employees of Batchfire Callide Management Pty Ltd. The CEPU sought this order under section 437 of the Fair Work Act 2009, aiming to determine if employees could take protected industrial action. The Australian Manufacturing Workers’ Union also filed a similar application regarding the same enterprise agreement, although it was treated as a separate case. The employer, Batchfire, did not object to the CEPU’s application following discussions between the parties.

The legal issues before the Commission included whether the CEPU had genuinely attempted to reach an agreement with Batchfire, if the notification period for the proposed agreement was met, and whether all the requirements under section 443(1) of the Fair Work Act were satisfied. The Commission had to assess if the application met the criteria for a protected action ballot, including the steps taken by the CEPU in bargaining with the employer and the approval of a ballot agent.

The Deputy President concluded that the CEPU had genuinely tried to reach an agreement with Batchfire and that all conditions under section 443(1) of the Act were met. The ballot agent, Democratic Outcomes Pty Ltd, was approved to conduct the ballot. The Commission set the closing date for voting on the ballot as 1 October 2024, effectively establishing the ballot period. The matter was assigned to another member of the Commission for the compulsory conciliation conference under section 448A, with orders issued to ensure all bargaining representatives attended and were prepared to negotiate.

An order was issued for the protected action ballot to proceed, with the specified closing date for voting. This decision ensures that the employees can participate in a lawful and regulated process to express their views on the proposed enterprise agreement.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established