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 2489

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

(B2023/1023)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 27 SEPTEMBER 2023

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

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 Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd T/A Evoenergy (Evoenergy or Employer).

On 27 September 2023, the Commission was advised that Evoenergy did not, in effect, object to the Application as amended.[1]

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 the Employer 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[2] 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 12 October 2023.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR766618.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved 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] The Respondent raised an objection to the application with the CEPU directly regarding the wording of the safety commitment in the Order. Both parties subsequently engaged in discussions and an amended version was provided to the Commission at 10.51am (AEST) on 27 August September 2023. The Respondent did not raise any objections to the final amended version.

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

[3] This is, in effect, ten (10) working days from the date effect of the Order.

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) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 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 CEPU sought to conduct the ballot to determine if its members were in favour of taking protected industrial action due to the lack of progress in bargaining with Evoenergy. The employer, Evoenergy, did not object to the application, leading to the determination of the matter on the papers without a hearing.

The legal issue before the Deputy President was whether the CEPU had met all the requirements under section 443(1) of the Fair Work Act to conduct a protected action ballot. The CEPU argued that it had been genuinely trying to reach agreement with Evoenergy and had followed the necessary steps in bargaining. The Deputy President considered the declaration of a CEPU official and found that the union had indeed met all the requirements for the ballot. The Deputy President also determined the closing date for voting to be 12 October 2023, which established the ballot period.

In light of the findings, the Deputy President issued an order allowing the CEPU to conduct the ballot through the approved agent, Democratic Outcomes Pty Ltd T/A CiVS. The matter will proceed to a compulsory conciliation conference under section 448A of the Act, where the Commission will require the attendance of all bargaining representatives to facilitate meaningful negotiations. The Deputy President also noted that directions may be issued to ensure the parties are prepared for the conference.

This decision ensures that the CEPU can proceed with the ballot to gauge its members' support for potential industrial action, while also setting the stage for further negotiations between the CEPU and Evoenergy.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established