Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Joy Global Australia Pty Ltd T/A Komatsu Mining Corp Summary

[2024] FWC 2641

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

Joy Global Australia Pty Ltd T/A Komatsu Mining Corp

(B2024/1259)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 25 SEPTEMBER 2024

Proposed protected action ballot of employees of Joy Global Australia Pty Ltd T/A Komatsu Mining Corp

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 Joy Global Australia Pty Ltd trading as Komatsu Mining Corp (Joy Global 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 25 September 2024, the Commission was advised that the Employer, in effect, 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 Stewart Edward, 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 Joy Global, 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 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 8 October 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 PR779581.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. That Member will issue an Order requiring the attendance of all bargaining representatives 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] B2024/1243.

[2] This is, in effect, 8 working days from the making of the Order and was the specific date sought in the application so as to coincide with the ballot in the related matter

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission dealt with an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order concerning employees of Joy Global Australia Pty Ltd trading as Komatsu Mining Corp. This application was made under section 437 of the Fair Work Act 2009 and involved proposed industrial action related to a specific enterprise agreement. Notably, another union, the Australian Manufacturing Workers’ Union (AMWU), had also filed an application for a protected action ballot order concerning the same proposed enterprise agreement. Despite the dual applications, the employer, Joy Global, did not object to the CEPU's application. Consequently, the Commission decided to adjudicate the matter based on the submitted documentation without scheduling a hearing.

The primary legal issue before the Commission was whether the CEPU had fulfilled the prerequisites for a protected action ballot under the Fair Work Act. This included verifying if the union had genuinely attempted to reach an agreement with the employer and if all procedural requirements were met, including the notification period stipulated in section 443(1) of the Act. Furthermore, the Commission had to ascertain whether the designated ballot agent, Vero Engagement & Voting Solutions Pty Ltd, was suitably approved to conduct the ballot. The Commission's decision also had to take into account the timelines for the ballot process, particularly setting a closing date for voting in accordance with section 443(3)(c) of the Act.

In rendering its decision, the Deputy President concluded that the CEPU had indeed met all the necessary requirements for a protected action ballot. The evidence presented, including the declaration by Stewart Edward, the CEPU Organiser, demonstrated that the union had been genuinely attempting to negotiate with the employer. Additionally, the Commission confirmed that the specified date for closing the ballot, 8 October 2024, was appropriate and aligned with the requirements of the Act. An order was subsequently issued to formalise these decisions. The Commission also noted that this matter would be assigned to another member for a compulsory conciliation conference, where meaningful negotiations would be expected to take place.

An order was made granting the CEPU's application for a protected action ballot order. Voting was to close on 8 October 2024, and Vero Engagement & Voting Solutions Pty Ltd was authorised to conduct the ballot. The matter was to proceed to a compulsory conciliation conference, with the AMWU and other relevant parties required to attend. This conference aimed to facilitate meaningful negotiations regarding the proposed enterprise agreement.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Joy Global Australia Pty Ltd T/A Komatsu Mining Corp

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established