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 2823

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

(B2023/1173)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 27 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 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 26 October 2023, the Commission was advised that Evoenergy did not, in effect, 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 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[1] 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 10 November 2023.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR767668.

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

[2] This is in effect 7 working days from the commencement date, as sought in the application.

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) lodged an application with the Fair Work Commission for a protected action ballot order, pursuant to section 437 of the Fair Work Act 2009, in relation to certain employees of Icon Distribution Investments Limited and Jemena Networks (Act) Pty Ltd T/A Evoenergy (Evoenergy). The application was not opposed by Evoenergy, allowing the matter to proceed without a hearing. The CEPU submitted a declaration by a union official stating that the union had been genuinely attempting to reach an agreement with Evoenergy during negotiations. Additionally, the union confirmed that all the requirements outlined in section 443(1) of the Act had been fulfilled, establishing a notification period for the proposed agreement. The ballot was to be conducted by Democratic Outcomes Pty Ltd T/A CiVS (CiVS), which had been approved as an eligible ballot agent under section 468A of the Act.

The primary legal issue the Commission needed to resolve was whether the CEPU had satisfied the conditions set out in section 443(1) of the Act, which are prerequisites for the Commission to grant a ballot order. The CEPU's declaration and the absence of objections from Evoenergy were central to this determination. The Commission needed to ensure that the union's efforts to reach an agreement were genuine and that all procedural requirements were met before issuing the ballot order. Another consideration was the appointment of a suitable date by which voting was to close, in line with section 443(3)(c) of the Act, which was set as 10 November 2023. The Commission also needed to schedule a compulsory conciliation conference under section 448A of the Act, which would be conducted by a different member of the Commission.

In determining the matter, the Deputy President concluded that the CEPU had met all the necessary conditions for a ballot order, including the genuine attempt to reach an agreement, the notification period, and the procedural requirements. The absence of objections from Evoenergy further supported the grant of the ballot order. The Deputy President issued an order for the ballot to be conducted by CiVS and set the closing date for voting as 10 November 2023. Additionally, the Deputy President scheduled a compulsory conciliation conference under section 448A of the Act, assigning another member of the Commission to conduct the conference and issue the necessary orders and directions for the parties to attend prepared for meaningful negotiations.

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