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 2870

[2023] FWC 2870

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

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

(B2023/1198)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 2 NOVEMBER 2023

Proposed protected action ballot of employees of Ventia Utility Services Pty Limited and Downer Utilities Australia Pty Ltd

1. This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU, ETU 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 Employers). 

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

1. On 1 November 2023, the Commission was advised that Downer Ventia did not, in effect, object to the Application, as amended.[2]

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 Mr Wendel Moloney, CEPU 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 Downer Ventia Joint Venture, 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 for the Applicant to provide the following undertaking, to be noted in the Decision, as follows:

The ETU 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, ETU members will be available to perform work. ETU 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 ETU Member is required to isolate a pump station in the event of a burst water main.

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[3] 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 16 November 2023.[4] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. I am satisfied that there are relevant exceptional circumstances required by s.443(5) of the Act, justifying extended periods of written notice for the purposes of s.414(2)(b) when taking industrial action, as set out in the Order made by the Commission.

1. An Order has been separately issued in PR767820.

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 matter (B2023/1193). To the extent that this matter involves any additional bargaining representatives, the Commission will also issue the Order requiring their attendance 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.

[2] The parties provided a final amended application at 1:34pm AEST on 1 November 2023 to include an extended notice period for protected industrial action and a safety undertaking to be noted in the decision.

[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

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