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

[2024] FWC 797

[2024] FWC 797

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

Simplot Australia Pty Limited

(B2024/269)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 2 APRIL 2024

Proposed protected action ballot of employees of Simplot Australia Pty Limited

1. 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 Simplot Australia Pty Limited (Simplot or Employer).

1. 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[1] for a protected action ballot order in relation to the same proposed enterprise agreement (the related matter).

1. On 28 March 2024, the Commission was advised that Simplot, in effect, did not object to the Application.[2] However, it sought a longer ballot period than that proposed by the CEPU and both parties were invited to provide submissions on the issue, which was done. The positions and submissions of the parties were largely identical with those made in the related matter.

1. I observe that Simplot also initially raised a concern about a previous ballot order remaining in place concerning the same employees. It was subsequently confirmed with both parties that this order was earlier revoked by the Commission under s.448 of the Act.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing. 

1. On the basis of the material before me, including the declaration of Chelsea Hill, 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 them, 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. 

1. The ballot is to be conducted by the Vero Engagement & Voting Systems Solutions Pty Ltd T/A Vero Voting (Vero Voting). Vero Voting has been approved as an eligible protected action ballot agent under s 468A of the Act[3] and consequently is authorised to conduct the ballot.

1. For the purposes of s.443(3)(c) of the Act, the Commission must determine the date by which voting is to close. This also establishes the ballot period for the purpose of s.448A(2) of the Act. The CEPU propose that this date be 8 working days from the making of the Order whilst Simplot contend that it be no earlier than 10 working days from that point.

1. For reasons set out in the related matter,[4] having regard to all of the circumstances evident in this matter, I have determined that the date that the ballot is to close is 12 April 2024. This is, in effect, a period of 8 clear working days after the making of the Order. This date will enable the ballot to be conducted as expeditiously as practicable.

1. I also observe that to the extent that there is some difference of view about how soon the ballot period should open after the parties have provided their respective lists, under the Order issued by the Commission and the terms of the Act, this is a matter that the ballot agent can adjust as part of establishing the ballot timetable.

1. An Order has been separately issued in PR772820.

1. 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 (B2024/268). To the extent that this matter involves any additional bargaining representatives, the Commission will also issue the Order requiring their 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] B2024/268.

[2] Simplot also raised some points of clarification/correction about certain matters set out in the application and/or accompanying declaration, including that the scope of the proposed agreement remains the subject of bargaining. These do not impact upon the making of the Order, however the Commission and the parties have noted these matters.

[3] Vero Engagement & Voting Solutions T/A Vero Voting [2023] FWC 1531.

[4] [2024] FWC 795.

Printed by authority of the Commonwealth Government Printer

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