Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Comdain Gas (Aust) Pty Ltd and Comdain Services Pty Ltd Summary

[2025] FWC 2118

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

Comdain Gas (Aust) Pty Ltd and Comdain Services Pty Ltd

(B2025/1164)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 22 JULY 2025

Proposed protected action ballot of employees of Comdain Gas (Aust) Pty Ltd and Comdain Services Pty Ltd

This is an application by the Victorian Branch of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Plumbing Division (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 Comdain Gas (Aust) Pty Ltd and Comdain Services Pty Ltd (Comdain or Employers). The Commission understands that Comdain are related employers.

On 21 July 2025, the Commission was advised that the Employers, in effect, did not object to the Application, if amended to reflect an agreed position on the proposed ballot questions. However, the Employers reserve their rights about issues that might arise in connection with question 7 of the proposed forms of Industrial Action.

In the circumstances, I have decided to grant leave to amend the application and determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Nicholas McCubbin, Organiser, setting out the steps taken by the CEPU in bargaining with the Employers and that it has been, and is, genuinely trying to reach agreement with Comdain, 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 Australian Electoral Commission (AEC).

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 2 September 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.
An Order has been separately issued in PR789858.

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 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] This is, in effect, 30 working days from the making of the Order, which is the minimum period required by the AEC.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Plumbing Division (CEPU) for a protected action ballot order under section 437 of the Fair Work Act 2009. The union seeks to conduct a ballot among employees of Comdain Gas (Aust) Pty Ltd and Comdain Services Pty Ltd, with the latter two being related employers. The application was made on 21 July 2025, and the Employers did not object to the application, provided it was amended to reflect an agreed position on the proposed ballot questions. However, they reserved their rights regarding issues that might arise in connection with question 7 of the proposed forms of industrial action.

The legal issues the court had to decide involved whether the union had genuinely attempted to reach an agreement with the employers and if all the requirements under section 443(1) of the Act were met. The court considered the declaration by Nicholas McCubbin, Organiser, who detailed the union's efforts in bargaining with the employers and their genuine attempts to reach an agreement. The court also needed to determine an appropriate date by which voting would close for the ballot, considering the minimum period required by the Australian Electoral Commission.

The court found that the union had genuinely attempted to reach an agreement with the employers and that all requirements under section 443(1) of the Act were satisfied. The court granted leave to amend the application and determined the matter on the papers without holding a hearing. The date by which voting is to close was set at 2 September 2025, which is 30 working days from the making of the Order and the minimum period required by the Australian Electoral Commission. The matter will be assigned to another Member of the Commission to conduct a compulsory conciliation conference under section 448A of the Act. The court also issued an order requiring the attendance of all bargaining representatives at the conference.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Comdain Gas (Aust) Pty Ltd and Comdain Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established