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

[2024] FWC 2882

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

Mizco Pty Ltd

(B2024/1357)

DEPUTY PRESIDENT HAMPTON

MELBOURNE, 18 OCTOBER 2024

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

On 16 October 2024, the Commission was advised that the Employer did not object to the Application following discussions between the parties. The parties communicated a consent position.

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 Rory Cumins, 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 Mizco, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS 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 1 November 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 PR780334.

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, ten (10) working days from the date of the Order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard 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 certain employees of Mizco Pty Ltd. The application was made under section 437 of the Fair Work Act 2009. Following discussions between the parties, Mizco did not object to the application, and the Commission decided to determine the matter based on the submitted papers. The application sought to hold a ballot for potential protected action in the event that negotiations for an enterprise agreement with the employer, Mizco Pty Ltd, were to be unsuccessful.

The legal issues the court needed to address included whether the union had genuinely attempted to reach an agreement with the employer, whether the notification period for the proposed agreement was correctly calculated, and whether all statutory requirements for conducting a protected action ballot were met. The court examined the declaration of Rory Cumins, Union Organiser, which outlined the steps taken by CEPU in bargaining with Mizco and confirmed that the union had been genuinely trying to reach an agreement. The court also had to determine the closing date for the ballot to ensure compliance with the Act.

After reviewing the evidence and confirming that all statutory requirements were satisfied, the court granted the application and issued an order. The ballot was to be conducted by Democratic Outcomes Pty Ltd (CiVS), an approved agent for protected action ballots. The Commission set 1 November 2024 as the closing date for voting, which also established the ballot period for the purposes of the Act. The matter was assigned to another Member of the Commission to conduct a compulsory conciliation conference to ensure meaningful negotiations. The court's decision enabled the union to proceed with the ballot while also facilitating further negotiations under the supervision of the Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established