Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v The Electricity Networks Corporation T/A Western Power
[2024] FWC 2889
•17 OCTOBER 2024
| [2024] FWC 2889 |
| 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
The Electricity Networks Corporation T/A Western Power
(B2024/1342)
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 17 OCTOBER 2024 |
Proposed protected action ballot of employees of The Electricity Networks Corporation Trading As Western Power
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 (PABO) in relation to certain employees of the Electricity Networks Corporation trading as Western Power (WP or Employer).
The Employer raised a number of concerns with the application but indicated that if those issues were resolved then it did not oppose the making of the order. However, the Employer noted that it sought that the order specify a notice period of seven days for the taking of protected industrial action (PIA). I convened a conference between the parties to discuss those concerns and the matters were resolved save for the issue of seven days’ notice for PIA. The concerns and the agreed outcomes / solutions are noted below:
Concern 1:The application, including the proposed orders, and the statutory declaration refer in several places to another employer that is not a party to the application (‘ACS Pty Ltd’ or ‘ACS’).
Solution:The Applicant provided an updated form, wherein it corrected the errors which I allowed pursuant to s.586.
Concern 2: The application refers to Annexures which are not attached.
Solution: The Applicant provided the annexures.
Concern 3:The Application contains an inaccurate statement about the outstanding/unresolved claims. Claims have been listed as outstanding or unresolved which have not been made in these negotiations (such as ‘minimum manning’).
Solution:The parties agreed that this did not impact on the PABO and it was agreed that the outstanding issues list would be corrected for the s.448A conference.
Concern 4:The draft order attached to the application does not state the group of employees to be balloted with sufficient specificity. The draft order refers to employees (but does not specify of which employer) ‘who will be covered by the proposed agreement’ (but does not specify the proposed agreement).
Solution:I undertook to draft the order such that the employees were more easily identified.
Concern 5:The Employer objected to question 1 of the ballot, which is as follows:
“An unlimited number of stoppages of the performance of all work for any amount of time between 15 minutes and 48 hours inclusive?”
The employer claimed that the question was ambiguous and potentially difficult to understand.
Outcome:I advised the parties that I did not regard the question as ambiguous or impermissible and the Employer consented but noted that it pressed its claim for seven days’ notice of PIA.
Concern 6:The Employer objected to question 2 of the ballot, which is as follows:
“All employees covered by the Enterprise Agreement are to not start work before their normal operating hours of 06:00am?”
The employer claimed the question was unclear.
Outcome:It was agreed that the question would be re-drafted to read:
“A ban on commencing normal shift work before 6.00am”
Concern 7:The Employer objected to question 5 of the ballot, which is as follows:
“An unlimited number of indefinite or periodic bans on interstate travel?”
The Employer noted that there was a potential that this might cover non-work travel and thus not be industrial action as defined in the Act.
Outcome:It was agreed that the question would be re-drafted to read:
“An unlimited number of indefinite or periodic bans on interstate travel for the purpose of performing work duties?”
In addition, the Employer sought the Applicant’s consent to insert a safety commitment into the order. The Applicant did not consent and I advised the Employer to contact Mr Adam Woodage, Secretary of the CEPU to discuss and agree an appropriate protocol.
The matter of notice for the taking of PIA was dealt with at a separate hearing on 16 October 2024. I advised the parties that would be informed of my decision on that matter on 17 October and written reasons would be provided as soon as possible.
On the basis of the material before me, including the declaration of Steven Graham, CEPU Branch Official, 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 WP, 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 (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 11 November 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 PR780351.
This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives 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
Appearances:
J Fox for the applicant.
B Pole of MinterEllison for the respondent.
Hearing details:
2024.
Perth (by video):
October 15,16.
[1] This is, in effect, 19 working days from the making of the Order and was the specific date sought in the application.
Printed by authority of the Commonwealth Government Printer
<PR780350>
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