Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Ventia Utility Services Pty Limited and Downer Utilities Australia Pty Ltd T/A Downer Ventia..

[2023] FWC 2967

[2023] FWC 2967

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

Ventia Utility Services Pty Limited And Downer Utilities Australia Pty Ltd T/A Downer Ventia Joint Venture

(B2023/1241)

DEPUTY PRESIDENT WRIGHT SYDNEY, 14 NOVEMBER 2023

Proposed protected action ballot of employees of Ventia Utility Services Pty Limited And Downer Utilities Australia Pty Ltd T/A Downer Ventia Joint Venture

1. 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 Ventia Utility Services Pty Limited And Downer Utilities Australia Pty Ltd T/A Downer Ventia Joint Venture (Downer Ventia or Employer). 

1. I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) have made separate applications for a protected action ballot order in relation to the same proposed agreement.[1]

1. On 14 November 2023, the Commission was advised that the Employer did not object to the Application, as amended.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the declaration of Luke Barden, Organiser, setting out the steps taken by the Applicant in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with them, 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.

1. The parties agreed to provide the following undertaking, to appear on all notices of protected industrial action from the CEPU, 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. For example, this includes where sewerage is flowing down a street or where
an CEPU member is required to isolate a pump station in the event of a burst water
main.

1. Based on the parties’ agreement in relation to the terms of the draft orders, I am satisfied that there are exceptional circumstances justifying the period of written notice being longer than 3 working days for industrial action referred to in Question 5 of the ballot questions. Pursuant to s.443(5) of the Act, the period of written notice for the purposes of s414(2)(b) of the Act is 5 calendar days for the industrial action specified in Question 6.

1. 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[2] and consequently is authorised to conduct the ballot.

1. 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 November 2023.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. An Order has been separately issued in PR768222.

1. This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matters (B2023/1193, B2023/1198, and B2023/1247) 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] B2023/1193, B2023/1198, and B2023/1247 respectively.

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

[3] This is in effect 10 working days from the date of the order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

<PR768221>