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

[2024] FWC 1782

[2024] FWC 1782

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

Downer EDI Works Pty Ltd

(B2024/851)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 8 JULY 2024

Proposed protected action ballot of employees of Downer EDI Works Pty Ltd

1. 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 Downer EDI Works Pty Ltd trading as DM Roads (DM Roads or Employer).

1. On 5 July 2024, the Commission was advised that the Employer, in effect, did not object to the Application following discussions between the parties. The parties ultimately communicated a consent position and the application has been amended accordingly.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the declaration of Jesse Savill, 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 DM Roads, 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.

1. The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

1. 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 22 July 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

2. I observe that the Parties agreed for the Applicant to provide the following undertaking, which has also been added to the Order:

“1.During any industrial action, members of the ETU will be ready, able and willing to perform any unplanned work that meets the following criteria:

(a)The work if not performed would create a serious and immediate threat to human life or a serious and imminent risk of personal injury and/or illness; and

(b)The work cannot be reasonably be performed by any person not taking part in the industrial action (‘Emergency Work’).

2.During any industrial action, members of the ETU will keep the mobile device they ordinarily use for communicating with the Employer on their person for the purpose of being notified of the need to perform Emergency Work.

3.During any industrial action, members of the ETU shall actually perform such emergency work provided the employer issues a written direction to them which:

(a)Outlines the nature of the emergency work which needs to be performed; and

(b)Describes why the work, if not performed imminently by the relevant employees would cause a serious and imminent threat to human life or a serious and imminent risk oof personal injury and/or illness”

1. An Order has been separately issued in PR776773.

1. 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, 10 days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

<PR776774>