Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v JBS Australia Pty Limited

[2024] FWC 1936

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

JBS Australia Pty Limited

(B2024/923)

DEPUTY PRESIDENT ROBERTS

SYDNEY, 23 JULY 2024

Proposed protected action ballot of employees of JBS Australia Pty Limited

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 JBS Australia Pty Limited (JBS or Employer).

I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)[1] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 22 July 2024, the Commission was advised that the Employer objected to one of the questions on the proposed ballot. On the same date, the Applicant filed a revised draft order. The Commission was subsequently advised that the Employer no longer objected to the application or proposed order.

In the circumstances, I decided to determine the matter on the papers without holding a hearing. The parties were advised accordingly.

On the basis of the material before me, including the declaration of Ash Bamford, Organiser, setting out the steps taken by the CEPU in bargaining with the Employer and evidence to indicate that it has been, and is, genuinely trying to reach agreement with JBS, 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. I am also satisfied that the application was provided to the employer and the ballot agent in accordance with s.440 of the Act.

The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act 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 1 August 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR777418.

DEPUTY PRESIDENT

[1] B2024/880.

[2] This is, in effect, 9 days from the making of the Order and was the date 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) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning specific employees of JBS Australia Pty Limited. The AMWU also made a separate application regarding the same proposed enterprise agreement, and the employer initially objected to one of the questions on the proposed ballot. However, the employer later withdrew its objections, leading to the application being determined on paper. The CEPU demonstrated through evidence that it had genuinely attempted to reach an agreement with JBS, satisfying the requirements of section 443(1) of the Act. Vero Engagement & Voting Solutions Pty Ltd was approved to conduct the ballot, which was set to close on 1 August 2024.

The key legal issues before the Deputy President involved whether the CEPU had satisfied the statutory requirements to hold a ballot, specifically under sections 437, 443(1), and 440 of the Fair Work Act. The determination also hinged on whether the employer's initial objections were valid and whether the CEPU had provided adequate notification and adhered to the procedural requirements. Additionally, the Commission needed to ensure that the ballot agent, Vero, was appropriately authorised under section 468A of the Act.

Deputy President Roberts examined the evidence provided by CEPU, including the declaration by Ash Bamford, Organiser, which detailed the bargaining process with JBS. The Deputy President concluded that the CEPU had met all the statutory requirements, including proper notification and adherence to procedural mandates. The employer's initial objection was withdrawn, and the Deputy President was satisfied that the ballot could proceed. The Deputy President also determined the closing date for the ballot as 1 August 2024, aligning with the statutory timelines and the employer's notification period.

The Deputy President issued an order for the protected action ballot to proceed, authorising Vero to conduct the ballot. The Commission established the ballot closing date of 1 August 2024, ensuring that all parties were aware of the timeline. The determination was made in light of the employer's withdrawal of objections and the CEPU's compliance with the Act's requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established