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

[2024] FWC 723

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

(B2024/236)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 20 MARCH 2024

Proposed protected action ballot of employees of Simplot Australia Pty Limited

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).

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 to the same proposed agreement.[1]

On 20 March 2024, the Commission was advised that Simplot, 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 Ms Chelsea Hill on behalf of the 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.

The ballot is to be conducted by the Australian Electoral Commission. 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 6 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 PR772553.

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 (B2024/228). That Member will issue an Order requiring the attendance of all bargaining representatives involved 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] B2024/228.

[2] This is, in effect, 30 working days from the making of the Order, as sought in the application. It is also the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) applied to the Fair Work Commission for a protected action ballot order in relation to employees of Simplot Australia Pty Limited. The dispute arose from negotiations over an enterprise agreement. The matter was heard by Deputy President Hampton of the Fair Work Commission. Simplot did not object to the application, allowing the matter to proceed on the basis of the submitted documents.

The court had to determine whether the CEPU had fulfilled the requirements under the Fair Work Act 2009 to hold a protected action ballot. This involved examining if the union had genuinely attempted to reach an agreement with Simplot and if all procedural requirements were met. The application included a declaration by Ms Chelsea Hill, who affirmed that the CEPU had taken appropriate steps in its negotiations and was making genuine efforts to reach an agreement.

The Deputy President found that the union had satisfied all necessary conditions under section 443(1) of the Act. Consequently, the court granted the application and set the closing date for the ballot as 6 May 2024. This decision also established the ballot period for the purposes of section 448A(2) of the Act. Additionally, a separate order was issued in PR772553. The matter will be assigned to another member of the Commission for a compulsory conciliation conference, ensuring the parties are ready for meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established