Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Fredon (WA) Electrical Pty Ltd
[2024] FWC 1112
•29 APRIL 2024
| [2024] FWC 1112 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Fredon (WA) Electrical Pty Ltd
(B2024/486)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 29 APRIL 2024 |
Proposed protected action ballot of employees of Fredon (WA) Electrical 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 Fredon (WA) Electrical Pty Ltd (Fredon or Employer).
On 24 April 2024, the Respondent advised the Chambers of Deputy President Hampton that it objected to the protected action ballot order being made. It raised a concern in relation to the form and content of the order, specifically with regard to the industrial action described in clause 5 of the proposed order, submitting that ballot question one was vague, uncertain and did not specify with any precision the nature of the proposed industrial action. Further, the Respondent, having identified that it performed work in relation to critical assets and infrastructure, including the infrastructure in hospitals and defence, sought the inclusion of a safety commitment from the Applicant in respect of ‘emergency events’.
In addition, the Respondent pressed there were exceptional circumstances that warranted extending the period of written notice as referred to in s 414(2)(a) of the Act. The Respondent submitted that the exceptional circumstances justified the period of written notice being longer than three working days and as such sought a period of seven days in order to allow adequate time to prepare for contingencies. The Respondent again relied upon its and its eligible employees, performance of work in respect of critical assets and infrastructure, to justify the extension of time.
In correspondence to the Chambers of Deputy President Hampton on 24 April 2024, the Applicant, in response to the issues identified by the Respondent, proposed an amended form of wording for certain proposed forms of industrial action in the proposed order and agreed to an extension of the period of written notice to five days. In addition, it provided a safety commitment in relation to the proposed protected industrial action concerning emergency events.
On 29 April 2024, the application was allocated to my Chambers. In the afternoon of 29 April 2024, Chambers was notified that the Respondent did not object to the application as amended and accepted the provision of the five days of written notice.
Based on the materials filed and observing the agreed position of the parties, I considered it appropriate to determine the matter on the papers without holding a hearing.
Regarding whether the circumstances warrant an extension to the notice period, I have found that they do. Section 443(5) of the Act provides that the Commission can require a longer period of notice to be given where it is satisfied that there are exceptional circumstances justifying this. The onus is on Fredon to provide evidence that would satisfy the Commission that there are exceptional circumstances in this instance. To warrant an extended period of notice, the Commission must be satisfied both as to the existence of exceptional circumstances and the fact that these justify the granting of the extended notice.
It is uncontroversial that the expression ‘exceptional circumstances’ was considered by Lawler VP in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation,[1] and in National Tertiary Education Industry Union v Charles Darwin University, the Full Bench concluded that the Vice President’s discussion was apposite to the phrase ‘exceptional circumstances justifying’ in s 443(5).[2]
In my view, and on balance, the circumstances described in the materials give rise to a finding of exceptional circumstances (as referred to in s 443(5)) justifying the extension of the notice period to up to five working days for the purposes of s 414(2)(b) of the Act (when taking industrial action set out in the Order made by the Commission). I have therefore extended the notice period accordingly.
On the basis of the material before me, including the declaration of Ian Gill, Organiser, setting out the steps taken by the CEPU in bargaining with Fredon and that it has been, and is, genuinely trying to reach agreement with Fredon, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[3] 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 15 May 2024.[4] This also establishes the ballot period for the purpose of s 448A(2) of the Act.
An Order has been separately issued in PR774302.
This matter will shortly be listed for a s 448A compulsory conciliation conference and an Order requiring attendance at the conference will be issued. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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[1] (2007) 167 IR 4.
[2] [2018] FWCFB 4011, [20]–[21].
[3] [2023] FWC 1400.
[4] This is, in effect, ten (10) working days from the date of the Order.
Printed by authority of the Commonwealth Government Printer
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