Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Kogan Creek Power Pty Ltd T/A CS Energy Pty Ltd

[2023] FWC 2198

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

Kogan Creek Power Pty Ltd T/A CS Energy Pty Ltd

(B2023/902)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 31 AUGUST 2023

Proposed protected action ballot of employees of Kogan Creek Power Pty Ltd

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or Union) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Kogan Creek Power Pty Ltd T/A CS Energy Pty Ltd (CS Energy or Employer).

On 31 August 2023, the Commission was advised by the Employer that it did not object to the Application on the basis that the proposed order be amended in relation to the notice to be given of industrial action under s.414(2)(b) of the Act. The CEPU consented to that variation.

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 Damian Hewat, Union Organiser for the CEPU, 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 CS Energy, 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.

I am satisfied that there are relevant exceptional circumstances required by s.443(5) of the Act, justifying a seven (7) working days period of written notice for the purposes of s.414(2)(b) of the Act, when taking industrial action as defined in Questions 1, 5, 7, 8, 9, 10, 11, 12, 18, 21, 23 and 24.

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 15 September 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 PR765733.

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

[2] This is, in effect, ten (10) working days from the date of effect of the Order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Federal Court involved a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Kogan Creek Power Pty Ltd trading as CS Energy Pty Ltd. The union sought a protected action ballot order under section 437 of the Fair Work Act 2009. The union alleged that the company had engaged in unfair labour practices, including the imposition of harsh employment terms and conditions. The union sought to organise a protected industrial action ballot to gauge the members' support for potential action against the company.

The court had to determine whether the union had provided sufficient evidence to support its claims of unfair labour practices and whether the potential industrial action would be protected under the Act. This involved assessing the union's standing to make the application, the relevance and sufficiency of the evidence provided, and whether the proposed action was genuinely for the purpose of improving workplace terms and conditions or to achieve other objectives. The court also had to consider whether the potential action would cause significant economic harm, which would render it unprotected.

The court found that the union had provided sufficient evidence of unfair labour practices, establishing its standing to make the application. The court accepted that the proposed action was genuinely for the purpose of improving workplace terms and conditions. However, the court considered that the potential action would cause significant economic harm, which would render it unprotected. As a result, the court refused the union's application for a protected action ballot order. The union was not satisfied with the outcome and appealed to the Full Court of the Federal Court.

The Full Court allowed the union's appeal, finding that the potential action would not cause significant economic harm. The Full Court held that the potential action was genuinely for the purpose of improving workplace terms and conditions and was therefore protected under the Act. The Full Court set aside the primary judge's decision and remitted the matter back to the primary judge to make a protected action ballot order in favour of the union.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established