Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v BCS Infrastructure Support Pty Limited

[2023] FWC 1748

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

BCS Infrastructure Support Pty Limited

(B2023/720)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 19 JULY 2023

Proposed protected action ballot of employees of BCS Infrastructure Support Pty Limited

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 the Respondent, BCS Infrastructure Support Pty Limited (BCS Infrastructure Support or Respondent).

On 19 July 2023, the Commission was advised that the Respondent 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 Ms Chelsea Hill, Legal and Industrial Administrative Facilitator for the CEPU, setting out the steps taken by the CEPU in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with BCS Infrastructure Support, 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) and s.448A(2) of the Act, a ballot period of 30 working days from the date of the Order (19 July 2023) has been established by this Commission.[1]

An order has been separately issued in PR764351.

This matter will be assigned to another Member of the Commission to conduct the s.448A conference in conjunction with related matter B2023/721. This Member will issue the Order requiring 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] This is the minimum period required by the Australian Electoral Commission.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has considered an application 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 concerning certain employees of BCS Infrastructure Support Pty Limited (BCS Infrastructure Support). BCS Infrastructure Support did not object to the application, leading the Commission to determine the matter based on the submitted documents. The Commission was satisfied, based on the evidence, that the CEPU had genuinely attempted to reach an agreement with BCS Infrastructure Support and that all requirements under section 443(1) of the Act had been met.

The legal issues before the Commission included whether the CEPU had fulfilled the preconditions for a protected action ballot under the Fair Work Act, including the requirement for a notification period and the demonstration of genuine efforts to reach an agreement. The Commission also needed to determine a ballot period that complied with the requirements of the Act and the practical considerations of the Australian Electoral Commission.

The Commission concluded that all necessary conditions were met, and granted the CEPU's application. A ballot period of 30 working days was established, starting from the date of the order, 19 July 2023. This period is the minimum required by the Australian Electoral Commission. The Commission also noted that a separate order had been issued in PR764351 and that the matter would be assigned to another member for a section 448A conference, with directions likely to be issued to ensure meaningful negotiations between the parties.

In summary, the Commission has granted the CEPU's application for a protected action ballot order, setting a 30-working-day ballot period and assigning the matter to another member for further negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established