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

[2024] FWC 2872

[2024] FWC 2872

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

(B2024/1351)

DEPUTY PRESIDENT HAMPTON MELBOURNE, 16 OCTOBER 2024

Proposed protected action ballot of employees of Downer Utilities Australia 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 Utilities Australia Pty Ltd (Downer or Employer).

1. On 15 October 2024, the Commission was advised that the Employer, in effect, did not object to the Application.

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 Bradley McDougall, 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.

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

1. In relation to proposed ballot questions 12 and 13, I observe that the Employer did not raise any objection to the application. In that light, I have presumed that it accepts that the action contemplated would, given the nature of the work involved, necessarily involve a restriction or limitation on, or a delay in, the performance of (normal) work so as to fall within the meaning of industrial action[2] and meet the relevant requirements of the Act.[3] I have dealt with the application on that basis.

1. An Order has been separately issued in PR780306.

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

[2] Section 19(1)(a) as the question is not stated to be a ban, limitation or restriction on the performance of work – s.19(1)(b) of the Act.

[3] Sections 437(3)(b) and 443(3)d) of the Act.

Printed by authority of the Commonwealth Government Printer

<PR780307>