Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Engie Fire Services Australia Pty Limited

[2021] FWC 5932

[2021] FWC 5932

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
ENGIE Fire Services Australia Pty Limited
(B2021/615)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 16 SEPTEMBER 2021

Proposed protected action ballot of employees of ENGIE Fire Services Australia Pty Limited – application to vary by ballot agent – application granted

[1] By email on 14 September 2021 the Australian Electoral Commission (AEC) applied to the Commission for an order extending the date for the closure of voting in a protected action ballot by seven days. The email provided as follows:

“The AEC would like to make an application to extend protected action ballot B2021/615 by 7 calendar days. The ballot is due to close tomorrow, Wednesday 15 September 2021 but the AEC would like to extend the ballot to close on Wednesday 22 September 2021.”

[2] The application for the ballot the subject of the AEC’s application was made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) on 2 August 2021. The persons to be balloted are employees of ENGIE Fire Services Australia Pty Ltd (ENGIE) as described in the CEPU’s application. There are four (4) persons in the group.

[3] On 5 August 2021, the Commission (by consent) made an order under section 437 of the FW Act for a protected action ballot to be held from amongst the defined group of employees. The order was that the ballot be conducted by the AEC, and that voting on the ballot close thirty (30) working days from the date of the order. The ballot period was to close by 15 September 2021.

[4] The AEC seek that this date be extended by seven days such that voting on the ballot close by 22 September 2021.

[5] On 14 September 2021 I sought the views of the CEPU and the employer by noon on 15 September 2021.

[6] The AEC’s application for variation is supported by the CEPU. Five days in advance of the ballot closing, the CEPU submit that it was informed by the AEC on or about 10 September 2021 that no postal ballots had yet been received by the AEC. The CEPU submit that it then took steps to check with its members who had been balloted to ascertain whether they had voted and sent a postal ballot. The CEPU was informed its four members that they had done so on 2, 3, 4 and 8 September 2021 respectively. The CEPU considers that it would be unfair to close the ballot when postal votes had been cast in good faith in a timely manner and where apparent delays in the postal service have meant that those ballots had not been received by the AEC by closing date.

[7] The AEC’s application is opposed by ENGIE. ENGIE submit as follows:

“The Ballot process has been undertaken over a period of 5 weeks, and the ENGIE Fire Protection has met its requirements in notifying all of our employees and also providing the required information to the AEC within the required timeframes.

In addition, on 10 September 2021, the AEC reached out informing both parties that no votes had been received. ENGIE management went over and above to reach out to employees at this time, to ensure they were aware of the opportunity to vote for Protected Action and the required timeframes that a response was required.

ENGIE Fire Protection have fulfilled and gone above our requirements in this process as an Employer and Respondent.

There has been ample opportunity to place votes and rectify potential issues, and as such the Respondent’s position is that the original deadline for ballot closure of today be upheld, given the information at hand.”

[8] After receiving these submissions, on 15 September 2021 I made a provisional decision to extend the time by 24 hours pending determination of the matter.

[9] I conducted a hearing by conference on 16 September 2021 once it was apparent that the matter remained unresolved.

Consideration

[10] Section 447 of the Fair Work Act 2009 (FW Act) provides:

“447 Variation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to the FWC to vary the order.

(2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.

(3) An application may be made under subsection (1) or (2):

(a) at any time before the date by which voting in the protected action ballot closes; or

(b) if the ballot has not been held before that date and the FWC consents—after that time.

(4) If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.”

[11] The AEC has standing to make the application under section 447(2). The Commission has power to make the order sought under section 447(4). This is a discretionary power and one to be exercised consistent with judicial principles.

[12] The AEC’s application was made by email. It was not made in a form prescribed by the FW Act and its Rules. Having regard to the urgency with which the application was made given that by 10 September 2021 the AEC had received no ballots for a ballot closing on 15 September, I consider it appropriate to dispense, to the extent necessary, with the formal requirements for the making of the application and to accept the AEC’s written email of 14 September 2021 as an application for the purposes of section 447.

[13] However, I observe that applications to the Commission and consideration of those applications is not a mere administrative process. Greater effort should be made, especially by Commonwealth agencies such as the AEC, to make applications in the legally required form lest the applicant runs the risk of purported applications being dismissed. As is apparent in this matter, issues of procedural fairness arise. The AEC’s email of 14 September 2021 failed to state grounds on which the variation was sought. Those grounds were only advised the following day at the request of the Commission. Neither the CEPU nor the employer could fully be expected to put a position until the grounds advanced by the AEC were laid out; much less the Commission make a determination.

[14] I am satisfied that the relevant jurisdictional facts required by section 447 have been established and that the discretion is enlivened. A protected action ballot order has been made; that order required voting to close by a prescribed date (15 September 2021) and the AEC’s application for variation was made before the date by which voting in the protected ballot action closed.

[15] In these circumstances, should a discretion be exercised to extend the date the ballot closes?

[16] The grounds advanced by the AEC are as follows:

“1. The AEC had not received any postal votes back for this Protected Action Ballot. Approximately 7 days ago, the Returning Officer made contact with the Applicant to report that unusually, no postal votes had yet been returned.

2. The Applicant made enquiries of their members who all reported having voted some weeks ago. The assumption was that the current Australia Post delivery times may be impacting on their return.

3. As no postal votes had been returned by 14 September 2021, the AEC submitted the application for extension, on the basis that anecdotally, a number of postal votes were potentially held up in the postal system.

4. The ballot was due to close today, 15 September 2021.

This morning [15 September 2021], the AEC received a small number of postal votes for this PAB, potentially confirming that mail delays might be in play. Therefore, to ensure the franchise of persons entitled to vote, the AEC requests the variation to the Order of 7 days so that the date by which voting in the protected action ballot is to close is 22 September 2021.”

[17] In the circumstances, I consider the date should be extended.

[18] The ballot, as ordered, has been conducted by the AEC in an orthodox manner consistent with its COVID-19 protocols (which currently provide for postal ballots only). Ballot papers were sent (by post) in a timely manner to the relevant group of employees on 18 August 2021.

[19] It is apparent that reasonable grounds exist to believe that there have been postal delays at least in the receipt by the AEC of completed and posted ballots.

[20] On 10 September 2021, the AEC alerted both the CEPU and the employer to the fact that, unusually, no returned ballots had been received by that date.

[21] The first returned ballot was received by the AEC on 13 September 2021; and one further on 15 September 2021, being the day balloting closed. The CEPU have reason to believe that four ballots were separately posted by members in the fortnight prior to the ballot closing. Redacted correspondence from four CEPU members to the CEPU which is before me indicates this to be the case.

[22] In these circumstances, it is likely that two persons in the group who were entitled to be balloted and who have exercised their right to vote and return their ballot by post as directed, would be disenfranchised from the ballot were the time not extended for a reasonable period. Given that the purpose of a protected action ballot is to determine an important industrial issue (whether a majority support the taking of protected action), and given there is no evidence of tardiness or neglect on the part of the employees or the CEPU, it would not be appropriate to exclude ballots cast but not received by 15 September 2021.

[23] There is also little prejudice to the employer in such a course. ENGIE rightly point to the fact that it has done all it reasonably can to facilitate the process. So too has the CEPU, the AEC and it would appear, the employees. Delayed receipt is beyond the reasonable control of all parties and would appear to be the product of postal delays.

[24] Seven days is a reasonable period to extend the time for the closing of the ballot to enable any reasonable postal delays to be taken into account, without unduly extending the time and uncertainty associated with the declaration of the ballot result.

[25] An order 1 in those terms will be issued.

DEPUTY PRESIDENT

Appearances:

Ms E Hennessy, on behalf of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

Mr N Biernat, on behalf of ENGIE Fire Services Australia Pty Limited.

Ms K Bartlett and Ms O Lee, on behalf of the Australian Electoral Commission.

Hearing details:

2021
Adelaide (by telephone)
16 September

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