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

[2024] FWC 1674

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

Energy Australia Hallett Pty Ltd

(B2024/819)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 26 JUNE 2024

Proposed protected action ballot of employees of Energy Australia Hallett 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 Energy Australia Hallett Pty Ltd (EAH or Employer).

On 26 June 2024, the Commission was advised that the Employer did not object to the Application.

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 Max Mawby, 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 it, 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 9 July 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR776431.

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, 9 working days from the making of the Order as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order concerning certain employees of Energy Australia Hallett Pty Ltd (EAH). The employer did not oppose the application, leading the Commission to decide on the matter based on the documentation submitted. The application sought to authorise a ballot for proposed protected industrial action by the employees, in accordance with section 437 of the Fair Work Act 2009.

The legal issues before the Commission included whether the union had genuinely been attempting to reach an agreement with the employer, whether the notification period for the proposed agreement had been met, and if all requirements under section 443(1) of the Act had been fulfilled. The Commission reviewed the declaration by Max Mawby, an organiser for the CEPU, which detailed the union's bargaining efforts and their genuine attempt to reach an agreement with the employer. The Commission also noted that Democratic Outcomes Pty Ltd (CiVS) would conduct the ballot, as CiVS was approved as an eligible ballot agent under section 468A of the Act.

The Deputy President concluded that the union had genuinely been attempting to reach an agreement and that all legislative requirements had been met. Consequently, the Commission granted the application and authorised the ballot. The Commission set the closing date for voting as 9 July 2024, establishing the ballot period. Additionally, a compulsory conciliation conference was scheduled, with an order to be issued requiring the attendance of all bargaining representatives in the proposed enterprise agreement. The Commission aimed to facilitate meaningful negotiations and likely issue directions to ensure the parties were prepared for the conference.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established