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

[2024] FWC 1893

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

Mayne Pharma International Pty Ltd

(B2024/907)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 19 JULY 2024

Proposed protected action ballot of employees of Mayne Pharma International 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 Mayne Pharma International Pty Ltd (Mayne or Employer).

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

On 18 July 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 Simon Pisoni, 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 Mayne, 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 TrueVote Pty Ltd (TrueVote). TrueVote 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 30 July 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 PR777149.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matters. That Member will issue an Order requiring the attendance of all bargaining representatives for 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] Respectively, B2024/908 and B2024/909.

[2] This is, in effect, 7 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) considered an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order regarding certain employees of Mayne Pharma International Pty Ltd (Mayne). This application was made under section 437 of the Fair Work Act 2009 (Act). Additionally, the United Workers’ Union and the Australian Manufacturing Workers’ Union had each filed separate applications concerning the same proposed enterprise agreement. The FWC determined to proceed without a hearing as the employer did not object to the application.

The legal issues the FWC had to address included whether the CEPU had genuinely tried to reach an agreement with Mayne and if all requirements under section 443(1) of the Act had been fulfilled. The CEPU submitted a declaration from Simon Pisoni, an Organiser, confirming their genuine efforts in bargaining. The Commission also needed to establish the closing date for voting on the proposed agreement, as mandated by section 443(3)(c) of the Act. This date was set for 30 July 2024, effectively seven working days from the order date, aligning with the period requested in the application.

The FWC concluded that the CEPU had genuinely attempted to reach an agreement with Mayne and that all statutory requirements were met. The Commission approved TrueVote Pty Ltd as the authorised agent to conduct the ballot, in accordance with section 468A of the Act. The FWC set 30 July 2024 as the closing date for voting, which also established the ballot period under section 448A(2) of the Act. The matter will proceed to a compulsory conciliation conference under section 448A, with another member of the Commission overseeing the negotiations. An order was issued, and the matter was assigned to another member for further proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established