Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Downer EDI Engineering Electrical Pty Ltd

[2022] FWC 299

[2022] FWC 299

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

Downer EDI Engineering Electrical Pty Ltd

(B2022/66)

DEPUTY PRESIDENT BEAUMONT PERTH, 14 FEBRUARY 2022

Proposed protected action ballot of employees of Downer EDI Engineering Electrical Pty Ltd – non-compliance with s 400 of the Fair Work Act 2009 (Cth)

1. Downer EDI Engineering Electrical Pty Ltd (the Company) has been negotiating for an enterprise agreement to replace the Downer EDI Engineering Electrical Pty Ltd Service Agreement 2013 (Downer Agreement),[1] since in or around September 2021.  It is not in dispute that the nominal expiry date of the current agreement has passed.

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has applied under s 437 of the Fair Work Act 2009 (Cth) (the Act) for a protected action ballot order (PABO).  It is uncontroversial that the CEPU is a bargaining representative of at least some of the employees who will be covered by the proposed agreement.  Those employees are electricians and work predominately at two client sites. 

1. The matter was allocated to my Chambers on 11 February 2022 and heard on 14 February 2022. During the course of the hearing, Counsel for the Applicant conceded that the Applicant had not provided to the protected action ballot agent a copy of the application as prescribed by s 440(a) of the Act. I reserved my decision, informing the parties that they would have until 16:00hrs (AWST) on 14 February 2022 to make submissions on this point.

1. Both parties availed themselves of the opportunity to make submissions on the Applicant’s failure to give a copy of the application to the protected action ballot agent. 

1. Placing reliance on the decision of the Full Bench in O’Brien Glass Industries Ltd v Construction, Forestry, Mining and Energy Union (‘O’Brien’),[2] the CEPU submitted that the Commission has discretion to amend an application to bring it in conformity with s 440(a).

2. The CEPU acknowledged that the circumstances in O’Brien differed to those before this Commission.  The amendment sought in O’Brien was to change the name of the ballot agent in circumstances where the application had been provided to the Australian Electoral Commission within the 24-hour period, and the intention of the applicant had always been to provide the application to the Australian Electoral Commission.  Notwithstanding, the application in O’Brien was provided to the Australian Election Company instead. The Full Bench found that the decision at first instance to allow the amendment under s 586 was to bring the intention and conduct of the applicant into conformity with the requirements of s 440 of the Act.[3] The Full Bench explained that the matter did not give rise to a context in which a member of the Commission (or as it was then Fair Work Australia) exercises the discretion vested by s 586 of the Act to amend an application where the application had not been made in conformity with s 440 of the Act.[4]

1. However, while the Applicant has relied upon O’Brien and several other cases to support its submission that the Commission is empowered under s 586 to waive the procedural irregularity, I am of the view that the application has not been made in conformity with s 440 of the Act. It follows that s 586 does not cure the non-compliance. The error made was not an administrative error like that described in O’Brien, and there is no evidence to show that either a ballot agent or the Australian Electoral Commission were provided with the application in the requisite period by the CEPU.    

1. While it is said that the ballot agent was made aware of the application when copied into the correspondence from the allocating Chambers on 11 February 2022, the provisions of the Act are clear.

1. A PABO may only be made in the circumstances outlined in s 443 of the Act. Those circumstances include that the Commission is satisfied that: (a) there has been an application made under s 437; and (b) the CPEU has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

1. Subdivision B of Division 8 - Protected action ballots of the Act, provides amongst other things, the requirements that the Commission must consider if it is to issue a protected action ballot order.

1. Section 440 of the Act provides as follows:

440 Notice of application

Within 24 hours after making an application for a protected action ballot order, the applicant must give a copy of the application to the employer of the employees who are to be balloted, and:
(a) if the application specifies a person that the applicant wishes to be the protected action ballot agent—that person; or
(b) otherwise—the Australian Electoral Commission.

1. Section 441 of the Act provides as follows:

441 Application to be determined within 2 days after it is made

(1) The FWC must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.
(2) However, the FWC must not determine the application unless it is satisfied that each applicant has complied with section 440.

1. Section 440 requires the applicant to give a copy of the application to the ballot agent within the requisite period.  The CEPU has not complied with this legislative provision at the time of the determination.  Therefore, the application must not be determined and is therefore dismissed. 

DEPUTY PRESIDENT

Appearances:

Mr Armen Aghazarian, for the Applicant;

Mr. Rob Twomey, for the Respondent.

Hearing details:

Perth (video hearing);

February 14 2022.

Final written submissions:

14 February 2022.

[1] [2013] FWCA 2553; PR536024.

[2] [2012] FWAFB 7300 (‘O’Brien’).

[3] Ibid [27].

[4] [2012] Ibid [28].

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