Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Icon Distribution Investments Limited and Jemena Networks (Act) Pty Ltd T/A Evoenergy

[2023] FWC 2539

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

Icon Distribution Investments Limited and Jemena Networks (Act) Pty Ltd T/A Evoenergy

(B2023/1038)

DEPUTY PRESIDENT DEAN

CANBERRA, 4 OCTOBER 2023

Proposed protected action ballot of employees of Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd T/A Evoenergy.

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd T/A Evoenergy (Evoenergy).

On 3 October 2023, the Commission was advised that Evoenergy did not oppose 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 Mr Allen Hicks, Union Official, setting out the steps taken by the CEPU in bargaining with Evoenergy and that it has been, and is, genuinely trying to reach agreement with Evoenergy, 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 the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[1] and consequently is authorised to conduct the ballot.

An Order has been separately issued in PR766743.

This matter will also be the subject of a compulsory conciliation conference before me pursuant to s.448A. An Order and Directions for the purpose of the conference will be issued separately to this decision.

DEPUTY PRESIDENT

[1] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has 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 in relation to certain employees of Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd T/A Evoenergy. The Commission determined the matter on the basis of the documentation submitted, as Evoenergy did not oppose the application. The CEPU sought the order in accordance with section 437 of the Fair Work Act 2009 to facilitate a ballot for potential protected industrial action.

The primary legal issue for the Commission was whether the CEPU had satisfied the requirements under section 443(1) of the Act to conduct a ballot for protected action. This involved examining the CEPU’s efforts to reach an agreement with Evoenergy, including whether the union had genuinely tried to negotiate and whether there was a notification period for the proposed agreement. The evidence provided, including the declaration of Mr Allen Hicks, a Union Official, was pivotal in assessing these criteria. Additionally, the Commission had to verify that Democratic Outcomes Pty Ltd T/A CiVS (CiVS), the appointed ballot agent, was approved and authorised to conduct the ballot.

The Deputy President of the Commission concluded that the CEPU had met all necessary requirements for a protected action ballot. The declaration by Mr Hicks substantiated that the union had genuinely attempted to negotiate with Evoenergy and that a notification period for the proposed agreement was in place. Moreover, CiVS was confirmed to be an approved agent under section 468A of the Act. Consequently, the Commission granted the application and authorised the ballot. The decision also noted that a compulsory conciliation conference would follow, with separate orders and directions to be issued.

The Fair Work Commission ordered the protected action ballot to proceed as requested by the CEPU. This order allows the union to conduct the ballot through the approved agent, CiVS, to facilitate potential protected industrial action. The decision also confirmed the upcoming compulsory conciliation conference, which would be subject to separate orders and directions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established