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

[2025] FWC 732

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

UGL Engineering Pty Limited

(B2025/471)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 14 MARCH 2025

Proposed protected action ballot of employees of UGL Engineering 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 UGL Engineering Pty Limited (UGL or Employer).

On 13 March 2025, following discussions between the parties, the Commission was advised that the Employer did not object to the Application in an amended form. The parties communicated a consent position, including proposed variations to clarify the group of employees and an undertaking to be provided by the CEPU regarding safety critical works to be included in notices of protected industrial action. The terms of the safety undertaking are as follows:

“The CEPU undertakes to ensure that in an emergency situation where there is a risk to personal health and safety and where no other workers are available, CEPU members will be available to perform work. CEPU members will not engage in industrial action that would endanger the life, personal safety, health or welfare of the population or part thereof.”

Accordingly, I have granted leave to amend the application to adopt the revised proposed order and determined the application on the papers without conducting a hearing.

On the basis of the material before me, including the declaration of Leonard Lane, 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 UGL, 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 28 March 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR785193.

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

[1] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order in relation to employees of UGL Engineering Pty Limited. The union sought to conduct a ballot to potentially take industrial action, and the employer did not object to the application once it was amended to include certain conditions. The dispute centred on the legal requirements under the Fair Work Act 2009 for conducting such a ballot, particularly regarding the notification period and the steps taken by the union to negotiate in good faith with the employer.

The legal issues before the Commission included whether the union had satisfied the notification period as required by s.443 of the Act, and whether the union had genuinely attempted to reach an agreement with the employer. The union provided a declaration from Leonard Lane, their Organiser, outlining the negotiation process and their efforts to reach an agreement. The Commission also had to consider the terms of the safety undertaking provided by the union to ensure that no industrial action would endanger the safety of the population.

After reviewing the application and the declarations, Deputy President Hampton determined that the union had met all the requirements for the ballot. The Commission granted leave to amend the application and issued an order allowing the ballot to proceed. The ballot was to be conducted by Democratic Outcomes Pty Ltd, who was approved to conduct such ballots. The Commission set the closing date for the ballot as 28 March 2025, which was 10 working days from the date of the order. The matter was then assigned to another member of the Commission to conduct the compulsory conciliation conference under s.448A of the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established