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

[2024] FWC 2309

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

Essential Energy

(B2024/1100)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 29 AUGUST 2024

Proposed protected action ballot of employees of Essential 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 Essential Energy (Essential Energy or Employer).

On 28 August 2024, the Commission was advised that the Employer, in effect, did not object to the Application as amended following discussions between the parties.

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 Stephen John Magann, 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 Essential 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 Vero Engagement and Voting Solutions Pty Ltd (Vero). Vero 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 19 September 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

In accordance with s.443(5) of the Act, I am satisfied that there are relevant exceptional circumstances justifying the minimum period of written notice referred to in section 414(2)(b) of the Act being longer than three (3) working days. By consent, the Commission has specified four (4) working days as the minimum period of written notice required in respect of the industrial action taken by employees arising from the ballot questions in clause 5 of the Order.

An Order has been separately issued in PR778737.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matters. 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, 15 working days from the making of the Order and was the period sought in the amended application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) lodged an application under section 437 of the Fair Work Act 2009 (the Act) for a protected action ballot order concerning certain employees of Essential Energy. The application sought permission to conduct a ballot to ascertain whether employees would support industrial action. The employer, Essential Energy, did not oppose the application, leading to the matter being determined on the papers without a hearing.

The key legal issues before the Commission were whether the requirements for a protected action ballot under section 443(1) of the Act were met and whether exceptional circumstances warranted extending the notice period for industrial action beyond the statutory minimum. The CEPU provided a declaration from Stephen John Magann, a union official, detailing the bargaining process and the union's efforts to reach an agreement with the employer. The Commission also needed to confirm the suitability of Vero Engagement and Voting Solutions Pty Ltd as the ballot agent.

In making the decision, the Deputy President reviewed the declaration from the union official and the supporting material. The evidence satisfied the Commission that the union had genuinely attempted to negotiate and that the notification period for the proposed agreement was met. The Commission approved the ballot agent, Vero, and set the closing date for the ballot at 19 September 2024. The Deputy President determined that exceptional circumstances existed, justifying the extension of the minimum notice period for industrial action to four working days. Consequently, the application was approved, and an order was issued accordingly.

In light of the approval, the Commission also issued a separate order in PR778737 and assigned another Member to conduct a compulsory conciliation conference to facilitate further negotiations between the parties. The Commission will issue directions to ensure that all bargaining representatives attend the conference prepared for meaningful discussions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established