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

[2023] FWC 1426

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

Origin Energy Limited

(B2023/574)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 19 JUNE 2023

Proposed protected action ballot of employees of Origin Energy Limited

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Respondent, Origin Energy Limited (Origin).

On 15 June 2023, the Commission was advised that the Respondent 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 Matthew McCann, Union Organiser for the CEPU NSW Electrical Division, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, 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 Australian Electoral Commission. For the purposes of s.443(3)(c) and s.448A(2) of the Act, a ballot period of 30 working days from the date of the Order (16 June 2023) has been established by this Commission.[1]

An order has been separately issued in PR763150.

This matter will be assigned to another Member of the Commission to conduct the s.448A conference and this Member will issue the Order requiring attendance 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 the minimum period required by the Australian Electoral Commission.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) heard 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 Origin Energy Limited (Origin). The application was made under section 437 of the Fair Work Act 2009. The proposed action involved a ballot of Origin’s employees, and the application was made to facilitate this process. Origin did not object to the application, leading the Deputy President Hampton to decide to determine the matter on the papers without the need for a hearing.

The primary legal issue the FWC needed to resolve was whether the CEPU had met the statutory requirements for a protected action ballot under section 443 of the Fair Work Act. This included verifying that there was a notification period for the proposed agreement, and that the CEPU had genuinely attempted to reach an agreement with Origin. The declaration by Mr Matthew McCann, Union Organiser for the CEPU NSW Electrical Division, played a crucial role in this assessment. It detailed the steps taken by the union in bargaining with Origin and affirmed that the union had been genuinely trying to reach an agreement.

Upon reviewing the material presented, including Mr McCann's declaration, Deputy President Hampton was satisfied that the CEPU had met all the statutory requirements. The declaration provided sufficient evidence that the union had been genuinely attempting to negotiate and that there was a notification period in relation to the proposed agreement. Consequently, the FWC granted the application and established a ballot period of 30 working days from the date of the order, which was June 16, 2023. The ballot was to be conducted by the Australian Electoral Commission.

The FWC also issued an order separately in PR763150 and assigned the matter to another member of the Commission to conduct the section 448A conference. This member would issue the order requiring attendance at the conference, and it was likely that directions would be issued to ensure that the parties were prepared to engage in meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established