Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Northern SEQ Distributor Retailer Authority T/A Unitywater Summary

[2024] FWC 1172

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

Northern SEQ Distributor Retailer Authority T/A Unitywater

(B2024/507)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 7 MAY 2024

Proposed protected action ballot of employees of Northern SEQ Distributor – Retailer Authority.

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 Northern SEQ Distributor – Retailer Authority trading as UnityWater (UnityWater or Employer).

I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) have made a separate application for a protected action ballot order in relation the same proposed agreement.[1]

On 6 May 2024, the Commission was advised that the Employer 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 Daniel Bessell, 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 UnityWater, 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 21 May 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 PR774546.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. That Member will issue an Order requiring their attendance 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] B2024/508.

[2] This is, in effect, ten (10) working days from the date of the Order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves 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 Northern SEQ Distributor – Retailer Authority trading as UnityWater. This application was made under section 437 of the Fair Work Act 2009. The union sought to conduct a ballot to authorise protected industrial action in relation to a proposed enterprise agreement. UnityWater did not oppose the application, allowing the matter to be decided on the papers without a hearing.

The legal issues before the court pertained to whether the union had met the statutory requirements to hold a ballot for protected action. Specifically, the court had to determine if the union had genuinely attempted to negotiate in good faith, if the notification period had been properly observed, and if the ballot agent was appropriately authorised. The union provided a declaration from Daniel Bessell, an organiser, confirming the steps taken in bargaining and asserting that the union had been genuinely attempting to reach an agreement with the employer.

In its decision, the Fair Work Commission found that the union had satisfied the requirements under section 443(1) of the Act. The Commission determined that there was a notification period applicable to the proposed agreement and that all procedural prerequisites were met. The ballot was set to be conducted by Democratic Outcomes Pty Ltd (CiVS), which was approved as a ballot agent under section 468A of the Act. The closing date for voting was set at 21 May 2024, effectively ten working days from the date of the Order. The Commission also indicated that a compulsory conciliation conference would be held, with further orders to be issued to ensure meaningful negotiations took place.

In conclusion, the Fair Work Commission granted the union's application for a protected action ballot order. The Commission confirmed that the union had met all the statutory requirements and set the timeline for the ballot. The matter was assigned to another Member of the Commission for the compulsory conciliation conference, ensuring that the parties would engage in meaningful negotiations.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Northern SEQ Distributor Retailer Authority T/A Unitywater

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established