Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Rheem Australia Pty Limited T/A Rheem Australia

[2023] FWC 1492

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

Rheem Australia Pty Limited T/A Rheem Australia

(B2023/626)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 22 JUNE 2023

Proposed protected action ballot of employees of Rheem Australia Pty Limited T/A Rheem Australia

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, Rheem Australia Pty Limited T/A Rheem Australia (Rheem).

On 22 June 2023, the Commission was advised that the Respondent did not object to the Application. The parties were also advised by the Commission that it intended to add the normal preamble to the questions under clause 5 of the Order. No objection has been received.

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 Nicholas McCubbin, CEPU Plumbing Division Branch Organiser, 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 (22 June 2023) has been established by this Commission.[1]

An order has been separately issued in PR763471.

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] 1This 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 was asked to decide on an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) to hold a ballot for protected industrial action against Rheem Australia Pty Limited T/A Rheem Australia. Rheem did not object to the application, and no objections were raised regarding the addition of the standard preamble to the ballot questions. Consequently, the matter was decided based on the submitted documents without the need for a hearing.

The central legal issue before the Commission was whether the conditions stipulated in section 443(1) of the Fair Work Act 2009 had been fulfilled for the CEPU to hold a ballot. The CEPU needed to demonstrate it had genuinely attempted to reach an agreement with Rheem and that a notification period was in place for the proposed agreement. The Commission found that the CEPU had met all the requirements based on the declaration of Mr Nicholas McCubbin, CEPU Plumbing Division Branch Organiser, which outlined the bargaining efforts and the union's genuine attempts to reach an agreement.

After determining that all legal requirements were met, the Commission granted the CEPU's application for a protected action ballot order. The ballot was to be conducted by the Australian Electoral Commission, with a ballot period of 30 working days from the date of the order, 22 June 2023. A separate order was issued to assign this matter to another Commission member for the s.448A conference and to issue an order for attendance at the conference. The Commission also indicated that directions would likely be issued to ensure that the parties come prepared for meaningful negotiations.

This decision by the Fair Work Commission facilitates the process for the CEPU to hold a ballot for protected industrial action, subject to the conditions set forth in the order, including the established ballot period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established