Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v DM Roads Services Pty Ltd and Downer EDI Works Pty Ltd T/A DM Road Services Pty Ltd

[2023] FWC 2024

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

DM Roads Services Pty Ltd and Downer EDI Works Pty Ltd T/A DM Road Services Pty Ltd

(B2023/837)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 15 AUGUST 2023

Proposed protected action ballot of employees of DM Roads Services Pty Ltd & Downer EDI Works Pty Ltd T/A DM Road Services Pty Ltd

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 DM Roads Services Pty Ltd & Downer EDI Works Pty Ltd T/A DM Road Services Pty Ltd (DM Road Services or Employer).

On 15 August 2023, the Commission was advised, in effect, that DM Road Services did not object to the Application.[1]

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 Paul Scudds on behalf of the CEPU, 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 DM Road Services, 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) of the Act, the Commission has determined that the date by which voting is to close is 9 October 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 PR765171.

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 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] The Respondent emailed the Commission on 15 August 2023 noting minor typographical errors in the proposed Order; the Order was amended to address the above errors. Further, the Respondent advised that there are some employees of Downer EDI Works Pty Ltd who are currently covered by the South Australian Public Sector Wages Parity Enterprise Agreement (Plumbing, Metal and Building Trades Employees) 2019 and the Commission has noted this.

[2] This is, in effect, 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot.

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 hold a protected action ballot for certain employees of DM Roads Services Pty Ltd and Downer EDI Works Pty Ltd T/A DM Road Services Pty Ltd (DM Road Services or Employer). The CEPU sought a ballot order under section 437 of the Fair Work Act 2009 to take protected action if negotiations for a new enterprise agreement were not successful. DM Road Services did not object to the application, leading the Commission to decide the matter on the papers without a hearing.

The primary legal issue was whether the CEPU had satisfied the requirements of section 443(1) of the Act to be granted a ballot order. The Commission considered the declaration by Mr Paul Scudds on behalf of the CEPU, which outlined the union's efforts to negotiate in good faith with the employer. The Commission was satisfied that the union had met all the necessary requirements, including providing notification of the proposed agreement and demonstrating a genuine attempt to reach an agreement.

In determining the matter, Deputy President Hampton noted that DM Road Services had not objected to the application and had even pointed out some minor typographical errors in the proposed order, which were subsequently corrected. The Deputy President also acknowledged that some employees of Downer EDI Works Pty Ltd were currently covered by another enterprise agreement, the South Australian Public Sector Wages Parity Enterprise Agreement (Plumbing, Metal and Building Trades Employees) 2019. The Deputy President set the closing date for the ballot as 9 October 2023, which is 30 working days from the making of the order, to allow the Australian Electoral Commission sufficient time to conduct the ballot.

The Commission issued an order granting the CEPU's application for a protected action ballot, specifying the ballot period and assigning the matter to another Member of the Commission to conduct the compulsory conciliation conference. This Member was tasked with requiring the attendance of all bargaining representatives and issuing directions to ensure meaningful negotiations took place. The decision underscored the importance of the union's genuine efforts in bargaining and the procedural steps required for a protected action ballot to proceed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established