Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Endeavour Energy Network Management Pty Ltd T/A Endeavour Energy

[2023] FWC 3434

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

Endeavour Energy Network Management Pty Ltd T/A Endeavour Energy

(B2023/1400)

DEPUTY PRESIDENT ROBERTS

SYDNEY, 22 DECEMBER 2023

Proposed protected action ballot of employees of Endeavour Energy Network Management Pty Ltd T/A Endeavour Energy

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 Endeavour Energy Network Management Pty Ltd T/A Endeavour Energy (Endeavour Energy or Employer).

On 21 December 2023, the Commission was advised that Endeavour Energy objected to the Application. The matter was listed at 12:00pm on 22 December 2023 to deal with the application and the objection.

The outstanding objections to the application were resolved in private conference and terms of the order which I propose to make were consented to by all parties.

On the basis of the material before me, including the declaration of Ms Tara Koot, Union Official, 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 Endeavour Energy, 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 Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[1] 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 23 January 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR769697.

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] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.

[2] This date was sought by the Applicant.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Endeavour Energy Network Management Pty Ltd T/A Endeavour Energy. The employer, Endeavour Energy, had objected to the application. The matter was listed for a hearing on 22 December 2023, where the objections were resolved through private conference, and the terms of the proposed order were consented to by all parties. The Commission was satisfied that the union had genuinely tried to reach an agreement with the employer and that all the requirements of section 443(1) of the Act were met.

The legal issues the Court had to decide included whether the union had followed the necessary steps to reach an agreement with the employer and whether the union had genuinely tried to reach an agreement. The union provided a declaration from Ms Tara Koot, a union official, outlining the steps taken in bargaining with the employer and asserting that the union had been genuinely trying to reach an agreement. The Court had to determine whether the union met the requirements of section 443(1) of the Act and whether the proposed ballot order should be granted. The Court also had to decide on the closing date for voting in the ballot, which was set as 23 January 2024.

The Fair Work Commission granted the union's application for a protected action ballot order. The Court determined that the union had followed the necessary steps in bargaining with the employer and had genuinely tried to reach an agreement. The Court was satisfied that all requirements of section 443(1) of the Act had been met. The Court also set the closing date for voting in the ballot as 23 January 2024. An order was separately issued in PR769697, and the matter will be assigned to another member of the Commission to conduct a compulsory conciliation conference. The Court issued an order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. The Court likely issued directions to ensure the parties attended the conference ready to conduct meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established