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

[2023] FWC 2580

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

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

Mars Australia Pty Ltd

(B2023/1058)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 6 OCTOBER 2023

Proposed protected action ballot of employees of Mars Australia 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 Mars Australia Pty Ltd (Mars or Employer).

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

On 6 October 2023, the Commission was advised, in effect, that Mars 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 Ms Chelsea Hill on behalf of 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 Mars, 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 Australian Electoral Commission. 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 17 November 2023.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act and this aligns with the ballot period in the related matter.

An order has been separately issued in PR766927.

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 (B2023/1056). To the extent that this matter involves any additional bargaining representatives, the Commission will also issue the Order requiring their 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] This is, in effect, 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) seeking a protected action ballot order for employees of Mars Australia Pty Ltd. Mars did not object to the application, leading the Commission to determine the matter on the submitted papers without a hearing. The Commission was satisfied that CEPU had genuinely attempted to reach an agreement with Mars and that all requirements for a protected action ballot under the Fair Work Act 2009 had been met.

The legal issues before the Commission included whether the CEPU had met the criteria for a protected action ballot as per section 443 of the Act and if the timing and process for the ballot were appropriate. The Commission had to ensure that the ballot was conducted within the required timeframe, and that the Australian Electoral Commission would oversee the voting process.

The Deputy President, Hampton, found that the CEPU had fulfilled the necessary conditions to proceed with the ballot. The Commission set the closing date for voting as 17 November 2023, aligning with the required period for the Australian Electoral Commission to conduct the ballot. Additionally, the Commission scheduled a compulsory conciliation conference to be held along with a related matter, aiming to facilitate meaningful negotiations between the parties.

The Commission's final orders included the approval of the protected action ballot, the determination of the voting period, and the scheduling of a compulsory conciliation conference. The CEPU was authorised to conduct the ballot, which would be overseen by the Australian Electoral Commission. The orders also included provisions for the attendance of additional bargaining representatives at the conciliation conference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established