Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v REC Maintenance & Construction Pty Ltd

[2024] FWC 2527

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

REC Maintenance & Construction Pty Ltd

(B2024/1217)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 17 SEPTEMBER 2024

Proposed protected action ballot of employees of REC Maintenance & Construction 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 REC Maintenance & Construction Pty Ltd (REC or Employer).

I note that the Australian Workers’ Union (AWU) have made a separate application for a protected action ballot order in relation to the same proposed agreement.[1]

On 16 September 2024, 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 Ian Gill, Electrical Trades Union 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 REC. 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 T/As CiVS (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.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of minimum written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. The extended notice period of five (5) working days applies to the items listed within Clause 5 of the Order.

An Order has been separately issued in PR779290.

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. To the extent that this matter involves any additional bargaining representatives, 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] B2024/1215.

[2] This is, in effect, 10 working days from the date of Order and was the period established by the Commission following consultation with the parties.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has been asked to consider an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order in relation to employees of REC Maintenance & Construction Pty Ltd. The application is made under section 437 of the Fair Work Act 2009, and it concerns a proposed agreement between the union and the employer. The Australian Workers' Union has also made a separate application for a protected action ballot order in relation to the same proposed agreement.

The central legal issues the Commission had to address were whether the union had genuinely been trying to reach an agreement with the employer and if the union had met all the requirements under section 443(1) of the Fair Work Act for conducting a ballot. The Commission also needed to determine if there were exceptional circumstances that warranted an extended period of minimum written notice for the purposes of section 414(2)(b) of the Act when taking industrial action. Additionally, the Commission had to establish the closing date for voting in the ballot, as required by section 443(3)(c) of the Act.

Upon reviewing the documents submitted, including a declaration by Ian Gill, Electrical Trades Union Organiser, the Deputy President Hampton concluded that the union had genuinely been attempting to reach an agreement with the employer. The union had fulfilled all the requirements under section 443(1) of the Fair Work Act. The Deputy President was satisfied that there were exceptional circumstances justifying an extended period of minimum written notice for the purposes of section 414(2)(b) of the Act. Consequently, the Deputy President set the closing date for voting in the ballot as 2 October 2024, which is 10 working days from the date of the order. The Deputy President also issued an order for a compulsory conciliation conference to be conducted by another member of the Commission, likely accompanied by directions to ensure meaningful negotiations between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established