Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Valmet Pty Ltd T/A Metso Paper Service (ANZ) Pty Ltd

[2023] FWC 1158

[2023] FWC 1158

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

Valmet Pty Ltd T/A Metso Paper Service (ANZ) Pty Ltd

(B2023/442)

COMMISSIONER P RYAN SYDNEY, 16 MAY 2023

Proposed protected action ballot of employees of Valmet Pty Ltd Trading As Metso Paper Service (ANZ) Pty Ltd

1. This decision concerns an application made on 11 May 2023 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) pursuant to s.437 of the Fair Work Act 2009 (Cth) (FW Act) for a protected action ballot order in relation to certain employees of Valmet Pty Limited (Respondent).

1. In accordance with Rule 31 of the Fair Work Commission Rules 2013, the application was accompanied by a Form F34B Declaration of Prameesh Chandra, CEPU Organiser, and a draft order.

1. On 15 May 2023, Respondent raised two matters in response to the application. First, that it disputed the notification time identified in the declaration. Second, that the nominal expiry date in the enterprise agreement which currently covers the employees, the Valmet Pty Ltd – B9, Orora Botany Enterprise Agreement 2019-2023 (Agreement), erroneously states 30 June 2022 and should read 30 June 2023.

1. The matter was allocated to my Chambers and listed for conference on 16 May 2023.

1. During the conference, the Respondent stated that it agreed to bargain on 24 March 2023, rather than 15 March 2023. Irrespective of which date is taken to be the notification time, it was not disputed that there has been a notification time. This satisfies the requirement of s.437(2A) of the FW Act.

1. In relation to the nominal expiry date, the Respondent asserted that the nominal expiry date in the Agreement, 30 June 2022, is an error and that it should read 30 June 2023.

1. After hearing from the parties, I stated that I would be determining the application before me based on the nominal expiry date identified in the Agreement and the decision approving the Agreement, that is 30 June 2022. In doing so, I stated to the parties that there does not appear to have been any steps taken by the Respondent (and none were drawn to my attention) since the approval decision to correct or vary the nominal expiry date in the Agreement or appeal the approval decision. Furthermore, the statutory scheme in relation to applications for protected action ballot orders requires that they be dealt with as expeditiously as possible (see s.441).

1. After dealing with the two matters raised by the Respondent, and noting the Respondent does not otherwise object to the application, I advised the parties that I would proceed to determine the application on the materials filed. The parties did not object to that course.

1. Section 437 of the FW Act provides as follows:

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1)    A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2)    Subsection (1) does not apply if the proposed enterprise agreement is:

(a)  a greenfields agreement; or

(b) a multi‑enterprise agreement.

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Matters to be specified in application

(3)    The application must specify:

(a)  the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to

(c)  be balloted, including the nature of the proposed industrial action.

(4)    If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

(5)    A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a)  will be covered by the proposed enterprise agreement; and

(b) either:

(i)are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii)are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6)    The application must be accompanied by any documents and other information prescribed by the regulations.

1. Section 443 of the FW Act provides as follows:

443 When the FWC must make a protected action ballot order

(1)    The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2)    The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3)    A protected action ballot order must specify the following:

(a)  the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c)  the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4)    If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a)  the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5)    If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

1. On the basis of the material before me, including the statutory declaration of Prameesh Chandra of the CEPU declared on 11 May 2023, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the FW Act have been met.

1. The Applicant also sought that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M Michael, the Managing Director of CiVS has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVS has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

1. Therefore, I appoint CiVS as the protected action ballot agent.

1. An order PR761955 will be issued with this decision.

COMMISSIONER
Printed by authority of the Commonwealth Government Printer

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