Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Engie Fire Services Australia Pty Limited - [2018] FWC 5000

[2018] FWC 5000

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.437 - Application for a protection action ballot order

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

Engie Fire Services Australia Pty Limited

(IA2018-4592)

Commissioner Hampton

ADELAIDE, 29 August 2018

Proposed protected action ballot of employees of Engie Fire Services Australia Pty Limited – whether applicant union genuinely trying to reach an agreement – change in bargaining position – requirements satisfied – order issued.

Introduction

An application has been made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Engie Fire Services Australia Pty Limited (Engie). The relevant employees are the CEPU members who are presently covered by the Spectrum Fire & Security SA Electrical Enterprise Agreement 2011 - 2014 (the 2011 Agreement).

The CEPU and Engie are presently engaged in bargaining under the Act in relation to an enterprise agreement which is designed to replace the 2011 Agreement.

On 24 August 2018, the Commission wrote to Engie seeking an indication of its position on the application and requested advice if the matter was to be contested. Engie advised that it opposed the application and provided reasons in support of its position.

The application was heard on 27 August 2018. Having heard from the parties and considered the matter, I advised that a Protected Action Ballot Order (PABO) would be issued and that reasons for my decision would subsequently be issued, which I now do.

The Statutory context

The Act relevantly provides as follows in relation to an application for a PABO:

“436 Object of this Division
The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.
Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

Subdivision B—Protected action ballot orders
437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2)       Subsection (1) does not apply if the proposed enterprise agreement is:
(a)       a greenfields agreement; or
(b)       a multi-enterprise agreement.

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time, see subsection 173(2). Protected…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Engie Fire Services Australia Pty Limited [2018] FWC 5000
Case: [2018] FWC 5000
Decision Date: 29 August 2018

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) for a Protected Action Ballot Order (PABO) in relation to employees of Engie Fire Services Australia Pty Limited. The current enterprise agreement between the CEPU and Engie, the Spectrum Fire & Security SA Electrical Enterprise Agreement 2011 - 2014, expired on 1 March 2014. The CEPU sought the PABO to determine whether employees wished to engage in industrial action to support negotiations for a new enterprise agreement. The application was opposed by Engie on the basis that the CEPU had not genuinely tried to reach an agreement.

The Commission found that the CEPU had made a valid application for a PABO, and that the statutory requirements had been met, including the requirement that the CEPU genuinely try to reach an agreement with Engie. The Commission found that the CEPU had engaged in good faith negotiations and had genuinely tried to reach an agreement with Engie. While the parties had not reached agreement, this did not mean the CEPU was not genuinely trying to reach an agreement. The Commission noted that protected industrial action was not a prerequisite for a PABO to be issued, and that it was open to the parties to seek the Commission's assistance in resolving the bargaining dispute.

Accordingly, the Commission issued a PABO in conformity with the Fair Work Act 2009. The PABO required the CEPU to conduct a ballot of its members who were employees of Engie to determine whether they wished to engage in protected industrial action. The ballot question specified the nature of the proposed industrial action. The PABO also specified the date by which voting in the ballot had to close, the names of the CEPU and Engie, and the proposed ballot question. The PABO was issued in accordance with the statutory requirements, and the CEPU was obliged to comply with it.

Orders