Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Nilsen (NT) Pty Ltd

[2023] FWC 3317

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

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

Nilsen (NT) Pty Ltd

(B2023/1361)

DEPUTY PRESIDENT HAMPTON

MELBOURNE, 13 DECEMBER 2023

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

On 13 December 2023, the Commission was advised, in effect, that Nilsen 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 Mr David Hayes, Organiser, CEPU, 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 Nilsen, 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 the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[1] 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 10 January 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 PR769310.

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 involved 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] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[2] This date was nominated by the Applicant in the application, in light of the Ballot Agent’s “Christmas” closure period from 22 December 2023 to 8 January 2024.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) applied for an order permitting a ballot of employees of Nilsen (NT) Pty Ltd for protected action. The application was made under section 437 of the Fair Work Act 2009. The proposed action was a ballot for protected action to be held in relation to certain employees of Nilsen. The employer did not object to the application. The Deputy President was satisfied that all requirements for the ballot were met and issued an order permitting the ballot. The ballot was to be conducted by Democratic Outcomes Pty Ltd T/A CiVS, which had been approved as a ballot agent. The closing date for voting was set at 10 January 2024, which took into account the ballot agent's closure period over the Christmas period.

The legal issues before the Commission were whether the CEPU had met the requirements for a protected action ballot under section 443 of the Act. The requirements included demonstrating that the union had genuinely attempted to reach an agreement with the employer and that a notification period for the proposed agreement had been provided. The Deputy President found that the CEPU had met these requirements, and the employer had not objected to the application. The ballot agent had also been approved to conduct the ballot, and the closing date for voting was set in a manner that took into account the ballot agent's closure period.

The Deputy President issued an order permitting the CEPU to conduct a ballot of the employees of Nilsen (NT) Pty Ltd for protected action. The ballot was to be conducted by Democratic Outcomes Pty Ltd T/A CiVS, and voting was to close on 10 January 2024. The matter was assigned to another Member of the Commission to conduct the compulsory conciliation conference under section 448A of the Act. The Commission issued an order requiring the attendance of all bargaining representatives at the conference and likely issued directions to ensure that the parties attended the conference ready to conduct meaningful negotiations. This decision ensures that the employees have the opportunity to vote on the proposed agreement and that the bargaining process continues in a fair and transparent manner.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established