Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Infrabuild (Newcastle) Pty Ltd, Infrabuild (Manufacturing) Pty Ltd

[2023] FWC 2010

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

Infrabuild (Newcastle) Pty Ltd, Infrabuild (Manufacturing) Pty Ltd

(B2023/822)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 11 AUGUST 2023

Proposed protected action ballot of employees of Infrabuild (Newcastle) Pty Ltd

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 Infrabuild (Newcastle) Pty Ltd and Infrabuild (Manufacturing) Pty Ltd (the Respondents).

On 10 August 2023, the Commission was advised that the Respondents did not 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 Mr Ashely Bamford, CEPU Organiser, setting out the steps taken by the CEPU in bargaining with the Respondents and that it has been, and is, genuinely trying to reach agreement with the Respondents, 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 in the protected action ballot is to close is 24 August 2023. This also establishes the period for the purposes of s.448A(2) of the Act.

An Order has been separately issued in PR765129.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference and this Member will issue the Order requiring attendance 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

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 for a protected action ballot order in relation to certain employees of Infrabuild (Newcastle) Pty Ltd and Infrabuild (Manufacturing) Pty Ltd. The application was made under section 437 of the Fair Work Act 2009. The Respondents did not object to the application, so the matter was determined on the papers without a hearing.

The legal issues for the Commission to decide were whether the CEPU had genuinely tried to reach agreement with the Respondents and whether the requirements of section 443(1) of the Act were met. The Commission was satisfied, based on the evidence provided, that the CEPU had been genuinely trying to reach agreement and that all the requirements for a protected action ballot order had been met.

The Commission determined that Democratic Outcomes Pty Ltd T/A CiVS (CiVS) was an approved ballot agent and authorised to conduct the ballot. The voting in the protected action ballot was to close on 24 August 2023. This date also established the period for the purposes of section 448A(2) of the Act. A separate Order was issued in PR765129. This matter will be assigned to another Member of the Commission for the compulsory conciliation conference, and Directions will likely be issued to ensure meaningful negotiations.

The Commission issued an Order granting the CEPU's application for a protected action ballot order. Voting in the ballot was to close on 24 August 2023. This matter will be assigned to another Member of the Commission to conduct the compulsory conciliation conference and issue the Order requiring attendance. Directions will likely be issued to ensure the parties attend ready to conduct meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established