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

[2025] FWC 674

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 Utilities Australia Pty Ltd

(B2025/360)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 7 MARCH 2025

Proposed protected action ballot of employees of Downer Utilities Australia Pty Ltd

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 Utilities Australia Pty Ltd (Downer or Employer).

On 6 March 2025, the Commission was advised that the Employer, in effect, did not object to the Application, as amended to clarify the group of employees to be balloted.

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 Leonard Lane, 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 Downer, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

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 21 March 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 PR785019.

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 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

< PR785021>

CaseChat Overview and Summary

The case involves the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) applying for a protected action ballot order against Downer Utilities Australia Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, seeking to conduct a ballot among specific employees of Downer. The employer did not object to the application, leading the Deputy President to decide the matter based on the provided documentation. The purpose of the ballot is to allow employees to vote on the proposed protected action, which is a part of the ongoing bargaining process between the CEPU and Downer.

The primary legal issue before the court was whether the CEPU had met all the statutory requirements to conduct a protected action ballot. This included verifying that there was a notification period for the proposed agreement and that the union had genuinely tried to reach an agreement with Downer. The application also required confirmation that Democratic Outcomes Pty Ltd (CiVS) was an approved agent to conduct the ballot. The court had to determine if all these conditions were satisfied based on the evidence provided, particularly the declaration from the CEPU's Organiser, Leonard Lane.

The Deputy President reviewed the material, including Lane's declaration, and found that the CEPU had indeed met all the necessary requirements. The declaration detailed the union's efforts in bargaining with Downer and confirmed the union's genuine attempts to reach an agreement. Additionally, CiVS was identified as an approved agent under section 468A of the Act, eligible to conduct the ballot. Given these findings, the Deputy President was satisfied that the conditions for the ballot were met. Consequently, the Deputy President issued an order setting the closing date for voting as 21 March 2025, which also serves as the ballot period for the conciliation conference. The matter was assigned to another member of the Commission to conduct the compulsory conciliation conference, with directions likely to be issued to ensure meaningful negotiations.

In summary, the Fair Work Commission granted the CEPU's application for a protected action ballot order. The decision was based on the evidence that the union had fulfilled all statutory requirements, including the notification period and genuine bargaining efforts, and that CiVS was an approved ballot agent. The ballot closing date was set to 21 March 2025, and the matter was assigned to another Commission member for the compulsory conciliation conference.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established