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

[2024] FWC 1888

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

Etex Australia Pty Ltd

(B2024/900)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 18 JULY 2024

Proposed protected action ballot of employees of Etex Australia 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 Etex Australia Pty Ltd (Etex or Employer).

I note that the Construction, Forestry and Maritime Employees Union (CFMEU)[1] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 17 July 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 Zac Hicks, 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 Etec, 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 & 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 6 August 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR777138.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. That Member will issue an Order requiring the attendance of all bargaining representatives for 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] B2024/899.

[2] This is, in effect, 10 working days from the anticipated commencement of the ballot, as sought in the Application and Proposed Order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order concerning employees of Etex Australia Pty Ltd. This application was made under section 437 of the Fair Work Act 2009, and the employer did not object to the application. The CEPU sought the ballot order to facilitate industrial action if negotiations over an enterprise agreement failed.

The court's primary task was to determine whether the CEPU met all the statutory requirements to hold a protected action ballot. This included verifying that the union had genuinely attempted to reach an agreement with the employer and ensuring that the notification period for the proposed agreement was met. The court also had to consider the suitability of Vero Engagement & Voting Solutions Pty Ltd as the ballot agent and set a closing date for the voting period. The decision was made on the basis of the submitted documentation, including a declaration from Zac Hicks, an organiser for the CEPU, outlining the union's efforts in bargaining with the employer.

The Deputy President of the Commission concluded that the CEPU had met all the necessary requirements. The court found that there was a notification period for the proposed enterprise agreement and that the CEPU had genuinely attempted to reach an agreement with the employer. Vero was approved as a ballot agent, and the voting period was set to close on 6 August 2024. The decision also outlined that the matter would be assigned to another member of the Commission for a compulsory conciliation conference, ensuring that all bargaining representatives were prepared for meaningful negotiations.

This decision authorised the CEPU to proceed with the ballot as requested, subject to the set conditions and timelines. The Commission determined that the union had satisfied the legislative requirements, and the employer's lack of objection further supported the grant of the ballot order.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established