Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v NECA Education and Careers Ltd Summary

[2025] FWC 1867

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

NECA Education and Careers Ltd

(B2025/1062)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 1 JULY 2025

Proposed protected action ballot of employees of NECA Education and Careers 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 NECA Education and Careers Ltd (NECA Education or Employer).

On 1 July 2025, 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 Allister Davey, Branch 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 NECA Education, 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 Australian Electoral Commission (AEC).

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 12 August 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 PR788755.

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, 30 working days from the making of the Order, which is the minimum period required by the AEC.

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) for a protected action ballot order regarding employees of NECA Education and Careers Ltd. The CEPU sought this order under section 437 of the Fair Work Act 2009, which allows unions to apply for a ballot if they have been genuinely trying to reach an agreement with their employer but have been unable to do so. The employer, NECA Education, did not object to the application, allowing the Commission to determine the matter on the provided papers without a hearing.

The legal issues before the Commission were whether the CEPU had met the requirements to hold a protected action ballot under the Act, specifically if they had been genuinely trying to reach an agreement and if all necessary notification periods had been met. The Commission considered the declaration of Allister Davey, Branch Organiser for the CEPU, which outlined the union’s efforts in bargaining with NECA Education and their ongoing attempts to reach an agreement. The evidence suggested that the CEPU had fulfilled all necessary conditions to proceed with the ballot.

The Commission found that all requirements under section 443(1) of the Act were satisfied, including the notification period and the union's genuine efforts in bargaining. The Deputy President also set the closing date for voting as 12 August 2025, which aligns with the minimum period required by the Australian Electoral Commission. This decision facilitates the holding of a ballot to determine the employees' support for protected industrial action. A separate order was issued to assign another member of the Commission to conduct a compulsory conciliation conference under section 448A, aimed at resolving the outstanding issues through negotiation.

The final orders included granting the CEPU's application for a protected action ballot, setting the closing date for voting, and assigning another member to oversee the compulsory conciliation conference to encourage meaningful negotiations between the parties.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v NECA Education and Careers Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established