Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Koppers Carbon Materials and Chemicals Pty Ltd Summary

[2024] FWC 1777

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

Koppers Carbon Materials and Chemicals Pty Ltd

(B2024/848)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 8 JULY 2024

Proposed protected action ballot of employees of Koppers Carbon Materials and Chemicals Pty Ltd

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 Koppers Carbon Materials and Chemicals Pty Ltd (Koppers or Employer).

On 5 July 2024, the Commission was advised that the Employer 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 Ashley Bamford, Union 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 it, 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 19 July 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR776761.

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 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] This is, in effect, 9 working 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 Fair Work Commission was asked to decide on an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) under the Fair Work Act 2009. CEPU applied for a protected action ballot order concerning certain employees of Koppers Carbon Materials and Chemicals Pty Ltd (Koppers). The employer did not object to the application, leading the Deputy President to determine the matter based on the provided documents. The CEPU declared that it had genuinely attempted to reach an agreement with Koppers, satisfying the requirements for a notification period and meeting all the criteria in s.443(1) of the Act. Vero Engagement & Voting Solutions Pty Ltd, an approved ballot agent, will conduct the ballot. The Commission set 19 July 2024 as the closing date for voting, establishing the ballot period for s.448A(2) of the Act.

The primary legal issue before the Deputy President was whether the requirements for a protected action ballot under the Fair Work Act had been met. The CEPU needed to demonstrate that it had genuinely attempted to negotiate with Koppers and that a notification period was applicable. The Deputy President reviewed the declaration from CEPU's Union Organiser, which outlined the bargaining efforts and the union's intent to reach an agreement. The Commission also had to ensure that Vero, the approved ballot agent, would conduct the ballot in accordance with the Act. Furthermore, the Deputy President needed to determine an appropriate closing date for the voting period to facilitate the compulsory conciliation conference.

The Deputy President found that CEPU had genuinely attempted to negotiate with Koppers and that all the statutory requirements for a protected action ballot were met. The Commission was satisfied with the declaration from CEPU's Union Organiser, which detailed the steps taken and the union's ongoing efforts to reach an agreement. Vero's approval as a ballot agent under the Act was confirmed, ensuring that the ballot would be conducted properly. The closing date for voting was set at 19 July 2024, effectively 9 working days from the making of the order, in line with the application's request. The Commission decided to assign the matter to another Member for the compulsory conciliation conference under s.448A of the Act, ensuring that all bargaining representatives would attend and be prepared for meaningful negotiations.

In conclusion, the Fair Work Commission granted the CEPU's application for a protected action ballot order. The Commission confirmed that CEPU had genuinely attempted to negotiate with Koppers and met all statutory requirements. Vero was authorised to conduct the ballot, with voting to close on 19 July 2024. The matter was assigned to another Commission member to conduct the compulsory conciliation conference, with further orders and directions to be issued to ensure effective negotiations.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Koppers Carbon Materials and Chemicals Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established