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

[2025] FWC 3098

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

Monadelphous Electrical & Instrumentation Pty Ltd

(B2025/1584)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 16 OCTOBER 2025

Proposed protected action ballot of employees of Monadelphous Electrical & Instrumentation Pty Ltd – non-AEC ballot agent electronic voting

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 Monadelphous Electrical & Instrumentation Pty Ltd (Monadelphous or Employer).

On 15 October 2025, the Commission was advised that the Employer, in effect, did not object to the Application following discussions between the parties.

In the circumstances, I have decided to grant leave to amend the application and determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Shawn Higgins, 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 Monadelphous, 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 30 October 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR792698.

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, 10 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 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) applied to the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Monadelphous Electrical & Instrumentation Pty Ltd (Monadelphous). The application was made to allow a ballot regarding proposed protected action, specifically the use of a non-Australian Electoral Commission (AEC) ballot agent for electronic voting. Monadelphous did not object to the application following discussions with the CEPU. Consequently, the Deputy President decided to grant leave to amend the application and determine the matter on the papers without a hearing.

The legal issues before the court were whether the CEPU had genuinely attempted to reach an agreement with Monadelphous and whether the requirements of section 443(1) of the Act were met. The CEPU submitted a declaration from Shawn Higgins, an Organiser, outlining the bargaining efforts and demonstrating genuine attempts to reach an agreement with the employer. The court was also required to determine the appropriate closing date for the ballot under section 443(3)(c) of the Act and ensure the ballot agent, Democratic Outcomes Pty Ltd (CiVS), was eligible under section 468A of the Act.

The Deputy President found that all requirements of section 443(1) of the Act had been met, as evidenced by the CEPU's declaration and the genuine efforts in bargaining. The Deputy President also determined that the closing date for the ballot would be 30 October 2025, effectively 10 working days from the making of the order, aligning with the period sought in the application. CiVS was approved as an eligible ballot agent under section 468A of the Act. The Deputy President granted the order and scheduled a compulsory conciliation conference to be conducted by another member of the Commission. An Order was issued to require the attendance of all bargaining representatives at the conference, with potential directions to ensure meaningful negotiations.

The court's final orders included granting the CEPU's application for a protected action ballot order, setting the closing date for voting on 30 October 2025, and scheduling a compulsory conciliation conference. The matter was assigned to another member of the Commission to conduct the conciliation conference, ensuring the parties were ready to negotiate meaningfully.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established