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

[2024] FWC 1055

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

Tully Sugar Limited T/A Tully Sugar

(B2024/463)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 23 APRIL 2024

Proposed protected action ballot of employees of Tully Sugar Limited T/A Tully Sugar

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 Tully Sugar Limited T/A Tully Sugar (Tully Sugar or Employer).

I note that the Australian Workers’ Union (AWU)[1] and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)[2] have made separate applications for a protected action ballot order in relation to the same proposed enterprise agreement.

On 22 April 2024, the Commission was advised that Tully Sugar did not, in effect, 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 Mr Robert Hill, Organiser, 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 it, 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 Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS 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.

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 9 May 2024.[4] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR773835.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related members. 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] B2024/464.

[2] B2024/467.

[3] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.

[4] This is, in effect, ten (10) working days from the date effect of the Order, as sought in the Application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) seeking a protected action ballot order in relation to employees of Tully Sugar Limited. The application was made under section 437 of the Fair Work Act 2009, and the Commission was to determine whether the requirements for such a ballot were satisfied. Notably, two other unions, the Australian Workers’ Union and the Australian Manufacturing Workers’ Union, had also applied for similar orders concerning the same proposed enterprise agreement. Tully Sugar did not object to the CEPU's application, which led the Deputy President to decide on the matter based on the submitted documents without a formal hearing.

The legal issues before the court centred on whether the CEPU had genuinely attempted to negotiate with Tully Sugar and whether all statutory requirements for a protected action ballot were fulfilled. The CEPU needed to demonstrate that a notification period had elapsed and that all conditions under section 443 of the Fair Work Act were met. Additionally, the court had to confirm that the ballot agent, Democratic Outcomes Pty Ltd T/A CiVS, was duly authorised to conduct the ballot. The Deputy President considered the declaration by Mr Robert Hill, an Organiser for the CEPU, which outlined the bargaining process and the union's efforts to reach an agreement with Tully Sugar.

After reviewing the evidence, the Deputy President was satisfied that the CEPU had genuinely attempted to negotiate and that all requirements for the ballot were met. The Deputy President determined that voting would close on 9 May 2024, setting the ballot period. The Deputy President also issued an Order for a compulsory conciliation conference, to be conducted by another member of the Commission, to facilitate further negotiations between the parties. This decision ensures that the ballot can proceed while also encouraging continued dialogue between the union and the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established