Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Operations and Maintenance Pty Ltd T/A UGL

[2023] FWC 1797

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 Operations and Maintenance Pty Ltd T/A UGL

(B2023/733)

COMMISSIONER LIM

PERTH, 26 JULY 2023

Proposed protected action ballot of employees of UGL Operations and Maintenance Pty Ltd Trading As UGL

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made under s 437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Respondent, UGL Operations and Maintenance Pty Ltd (UGL or Employer).

On 24 July 2023, the Commission was advised that the Respondent objected to:

a)the Form F34 on the basis that it was submitted unsigned;

b)ballot questions 11 and 12 contained in the Draft Order; and

c)the amount of employee information requested for the conduct of the ballot.

Hearing

A hearing was conducted on 25 July 2023. Prior to the hearing, the CEPU filed an amended signed Form F34 which addressed UGL’s first objection.

At the hearing, a short adjournment was granted to allow the parties to engage in private conference discussions. As a result of the conference, the parties reached a consensus position on amendments to the Draft Order and the Employer withdrew their remaining objections.

The CEPU provided the declaration of Mr Simon Brezovnik which set out:

a) the notification time for the proposed enterprise agreement is 17 May 2023;

b) the steps taken by the CEPU in bargaining with UGL since the notification time; and

c) that the CEPU has been, and is, genuinely trying to reach agreement with UGL.

This evidence was unchallenged by UGL.

Accordingly, 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 recently been approved as an eligible protected action ballot agent under s 468A of the Act[1] and consequently is authorised to conduct the ballot.

For the purposes of s 443(3)(c) and s 448A(2) of the Act, I have determined that the ballot period will be ten (10) working days from the date of the Order (26 July 2023).

An order has been separately issued in PR64470.

Upon issuing a protected action ballot order the Commission is required by s 448A of the Act to also make an order directing the bargaining representatives to attend a conference for the purpose of mediation or conciliation in relation to the proposed agreement. An order and directions will accordingly be issued from my Chambers requiring that the parties attend a conference.

COMMISSIONER

Appearances:

Mr James Fox for the CEPU
Mr Geoff Weaver for UGL Operations and Maintenance Pty Ltd

Hearing details:

2023.
Perth
25 July.

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

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) under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of UGL Operations and Maintenance Pty Ltd. The CEPU sought to conduct a ballot to enable employees to vote on proposed protected action, presumably in response to an impasse in enterprise bargaining. UGL initially objected to the application on several grounds, including the unsigned form, the content of certain ballot questions, and the amount of employee information required. However, after a hearing and private conference discussions between the parties, UGL withdrew its objections, and the parties reached a consensus on amendments to the draft order. The Commission was satisfied that the CEPU had met the requirements of section 443(1) of the Act, including the notification time for the proposed enterprise agreement and the steps taken in bargaining with UGL.

The central legal issue before the Commission was whether to grant the CEPU's application for a protected action ballot order, despite UGL's initial objections. The Commission needed to determine whether the CEPU had complied with the statutory requirements for such an application and whether there were sufficient grounds for the proposed industrial action. After addressing the objections raised by UGL and reaching a consensus on the draft order, the Commission concluded that the CEPU had satisfied the necessary conditions for the ballot to proceed. The Commission also needed to determine the ballot period and direct the bargaining representatives to attend a conference for mediation or conciliation as required by section 448A of the Act.

In its decision, the Commission noted that the CEPU had filed an amended signed Form F34, addressing UGL's first objection. After the parties engaged in private conference discussions, they reached a consensus on amendments to the draft order, and UGL withdrew its remaining objections. The Commission was satisfied that the CEPU had been genuinely trying to reach agreement with UGL, as evidenced by the declaration of Mr Simon Brezovnik, which was unchallenged by UGL. Consequently, the Commission issued a protected action ballot order and directed the parties to attend a conference for mediation or conciliation. The ballot period was set at ten working days from the date of the order.

The Fair Work Commission granted the CEPU's application for a protected action ballot order, setting a ballot period of ten working days from 26 July 2023. The Commission also issued an order and directions requiring the parties to attend a conference for mediation or conciliation in relation to the proposed agreement. This decision ensures that the employees of UGL Operations and Maintenance Pty Ltd can exercise their right to vote on proposed protected action, while also providing an opportunity for the parties to resolve their differences through conciliation or mediation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established