Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v NewCold Melbourne Pty Ltd T/A NewCold Melbourne, NewCold Melbourne No 2 Pty Ltd T/A NewCold Melbourne Summary

[2024] FWC 2542

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

NewCold Melbourne Pty Ltd T/A NewCold Melbourne, NewCold Melbourne No 2 Pty Ltd T/A NewCold Melbourne

(B2024/1218)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 17 SEPTEMBER 2024

Proposed protected action ballot of employees NewCold Melbourne Pty Ltd T/A NewCold Melbourne and NewCold Melbourne No 2 Pty Ltd T/A NewCold Melbourne

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 NewCold Melbourne Pty Ltd and NewCold Melbourne No 2 Pty Ltd both trading as NewCold Melbourne (NewCold or Employers).

On 17 September 2024, the Commission was advised that the Employers, 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 Chelsea Hill, Legal and Industrial Admin Facilitator, setting out the steps taken by the CEPU in bargaining with the Employers and that it has been, and is, genuinely trying to reach agreement with NewCold, 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 2 October 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 PR779334.

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 making of the Order, and was the specific period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has adjudicated an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order against NewCold Melbourne Pty Ltd and NewCold Melbourne No 2 Pty Ltd, both trading as NewCold Melbourne. The application was made under section 437 of the Fair Work Act 2009. The CEPU sought to conduct a ballot of employees to authorise protected industrial action due to an inability to reach agreement with the employers on a proposed enterprise agreement. NewCold Melbourne did not object to the application, leading the Deputy President to determine the matter based on the submitted documents without a hearing.

The legal issues the Commission addressed included whether the CEPU had genuinely attempted to negotiate in good faith, whether the requirements of section 443 of the Act were met, and whether the proposed ballot agent was eligible and authorised under the Act. The Deputy President examined the declaration by Chelsea Hill, Legal and Industrial Admin Facilitator for the CEPU, which outlined the union's efforts to negotiate and reach an agreement with NewCold. The Commission considered that all procedural requirements were satisfied, including the notification period and the eligibility of the ballot agent, Democratic Outcomes Pty Ltd (CiVS), who was approved under section 468A of the Act.

In concluding, the Deputy President issued an order permitting the ballot to proceed, setting the closing date for voting as 2 October 2024. This date effectively established the ballot period under section 448A(2) of the Act. The Commission also assigned the matter to another member for a compulsory conciliation conference under section 448A, aiming to facilitate meaningful negotiations between the parties. An additional order was issued to ensure all bargaining representatives attended the conference, ready to engage in substantive discussions.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v NewCold Melbourne Pty Ltd T/A NewCold Melbourne, NewCold Melbourne No 2 Pty Ltd T/A NewCold Melbourne

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established