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

[2024] FWC 862

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

SMR Automotive Australia Pty Limited

(B2024/399)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 4 APRIL 2024

Proposed protected action ballot of employees of SMR Automotive Australia Pty Limited

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant or CEPU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of SMR Automotive Australia Pty Limited (SMR or Employer). This matter is related to B2024/394 and B2024/397.

On 3 April 2024, the Commission was advised that the Employer 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 Simon Pisoni, State Organiser, CEPU, setting out the steps taken by the Applicant in bargaining with the Employer and that they have been, and are, genuinely trying to reach agreement with the Employer, 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.

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 17 May 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR773160.

This matter will shortly be listed for a s.448A compulsory conciliation conference. An Order will be issued requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is in effect 30 working days from the date of the order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission received an application from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) under section 437 of the Fair Work Act 2009, seeking a protected action ballot order concerning certain employees of SMR Automotive Australia Pty Limited (SMR). The application was related to previous cases identified as B2024/394 and B2024/397. Notably, SMR did not oppose the application, leading the Commission to decide on the matter based on the submitted documents without the need for a hearing. The decision involved determining whether the CEPU met the requirements under section 443(1) of the Act, including demonstrating genuine efforts in bargaining with SMR.

The legal issues before the Commission included verifying whether the union had genuinely attempted to reach an agreement with the employer and whether the notification period for the proposed agreement had been appropriately established. The Commission had to ensure that all prerequisites under section 443(1) of the Act were fulfilled, which involved the union's declaration of its negotiation efforts and the timeline for the ballot. Additionally, the Commission needed to determine a closing date for the ballot that complied with section 443(3)(c) of the Act.

Upon reviewing the evidence, including the declaration by Simon Pisoni, State Organiser of CEPU, the Deputy President concluded that the union had indeed been genuinely attempting to reach an agreement with SMR. The Commission was satisfied that a notification period for the proposed agreement was in place and that all statutory requirements had been met. Consequently, the Deputy President issued an order setting the closing date for voting on the ballot as 17 May 2024, which also established the ballot period for the purpose of section 448A(2) of the Act. The Commission also issued a separate order in PR773160 and scheduled a compulsory conciliation conference under section 448A, directing all bargaining representatives to attend and 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