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 Summary

[2023] FWC 2229

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

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

(B2023/919)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 5 SEPTEMBER 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 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 the Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd T/A Evoenergy (Evoenergy or Employer).

On 5 September 2023, the Commission was advised that the Employer did not 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 Matthew Alan McCann, CEPU 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 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 14 September 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 PR765812.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference in conjunction with any related matters associated with the proposed agreement. 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 parties engaged in negotiations regarding the form of the proposed order to be issued by the Commission and an amended draft was filed on 5 September 2023.

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

[3] This is, in effect, seven (7) working days from the date of effect of the Order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order against Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd T/A Evoenergy. The CEPU sought to conduct a ballot for potential protected industrial action by certain employees of Evoenergy. The application was made under section 437 of the Fair Work Act 2009. Evoenergy did not object to the application, resulting in the Commission determining the matter on the papers without a hearing.

The central legal issue for the Commission was whether the CEPU had met the statutory requirements to hold a protected action ballot. This involved verifying that the union had genuinely attempted to reach an agreement with Evoenergy, that there was a notification period, and that all prerequisites under section 443(1) of the Act had been satisfied. The Commission had to confirm that the ballot agent, Democratic Outcomes Pty Ltd T/A CiVS, was approved and authorised to conduct the ballot. Additionally, the Commission had to set a closing date for the voting period in accordance with section 443(3)(c) of the Act.

Upon reviewing the evidence, including the declaration of Mr Matthew Alan McCann, CEPU Organiser, the Deputy President found that all conditions were fulfilled. The CEPU had genuinely engaged in bargaining and attempted to reach an agreement with Evoenergy. The notification period for the proposed agreement was also established. Consequently, the Commission granted the application and authorised the ballot to proceed. The voting period was set to close on 14 September 2023, establishing the ballot period under section 448A(2) of the Act. The matter was referred to another Member of the Commission for a compulsory conciliation conference.

The Commission issued an order allowing the ballot to proceed and set the closing date for voting. Further, an order was issued in PR765812, and the matter was assigned to another Member for the conciliation conference. Directions were expected to ensure meaningful negotiations between the parties.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established