Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Epic Energy South Australia Pty Limited T/A Epic Energy

[2020] FWC 3481

[2020] FWC 3481

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
Epic Energy South Australia Pty Limited T/A Epic Energy
(B2020/348)

COMMISSIONER HAMPTON ADELAIDE, 2 JULY 2020

Proposed protected action ballot of employees of Epic Energy South Australia Pty Limited T/A Epic Energy.

[1] This is an application lodged on 30 June 2020 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Epic Energy South Australia Pty Limited T/A Epic Energy.

[2] Epic Energy has confirmed to the Commission that it did not object to the application; however, it sought a seven-day notice period in relation to any protected industrial action to be taken. This was proposed on the grounds of exceptional circumstances, noting that the business is an essential service transporting natural gas for electricity generation and supplier to major industrial facilities in South Australia. The CEPU agreed to an extension of five working days (or seven calendar days) in the circumstances of this application.

[3] Noting that this application is not objected to by Epic Energy, and that the notice period issue is not in dispute, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr Simon Pisoni of the CEPU lodged 30 June 2020, setting out the steps taken by it in bargaining with Epic Energy and confirming that it has been, and is, genuinely trying to reach agreement with the Epic Energy, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the FW Act have been met.

[5] This includes my satisfaction that the CEPU has given notice in accordance with s.440 of the FW Act and has been, and is, genuinely trying to reach an enterprise agreement with the employer.

[6] Epic Energy has sought that written notice of seven (calendar) days be required in relation to the proposed industrial action. Section 443(5) of the FW Act provides, in effect, that if there are exceptional circumstances justifying the period of written notice (referred to in s.414(2)(a)) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days in relation to the proposed industrial action that is the subject of the protected action ballot.

[7] I am satisfied that there are relevant exceptional circumstances and that 5 working days notice is appropriate in this case. The term “working days” is defined in s.12 of the FW Act to be “a day that is not a Saturday, a Sunday or a public holiday” and the notice required under the Act is to be given by reference to “working days”. As a result, the notice provisions of the Order that I will make will require, in effect, that at least 7 calendar days notice is given.

[8] An order in conformity with the FW Act and these reasons is being issued in conjunction with this decision. 1

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR720691>

 1   PR720690