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

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

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).

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]

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

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

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.

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.

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.

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.

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.

An Order has been separately issued in PR767820.

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

CaseChat Overview and Summary

The case before the Fair Work Commission (FWC) involves an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) seeking a protected action ballot order in relation to employees of Ventia Utility Services Pty Limited and Downer Utilities Australia Pty Ltd, trading as Downer Ventia Joint Venture. The union is seeking to organise a ballot for its members to decide on potential industrial action in response to the proposed agreement between the union and the employers. The application was made under section 437 of the Fair Work Act 2009. The FWC noted that another union, the Australian Manufacturing Workers’ Union (AMWU), had made a separate application for a ballot on the same proposed agreement.

The primary legal issues before the FWC were whether the union had genuinely tried to reach agreement with the employers and whether all statutory requirements for a protected action ballot had been met. Specifically, the FWC had to determine if the union had complied with the notification period and other procedural requirements set out in the Fair Work Act, and whether there were exceptional circumstances warranting an extension of the notice period for protected industrial action.

The FWC found that the union had genuinely attempted to reach an agreement with the employers, as evidenced by the declaration from the union organiser and the steps taken during the bargaining process. The FWC was also satisfied that the union had met all the statutory requirements for a protected action ballot, including the notification period. The FWC determined that the voting period for the ballot would close on 16 November 2023, and that exceptional circumstances existed to justify extending the notice period for protected industrial action. The union provided an undertaking to ensure its members would not engage in industrial action that could endanger public safety.

The FWC issued an order allowing the union to conduct the ballot and noted the union’s undertaking in the decision. The matter was assigned to another member of the Commission for a compulsory conciliation conference, with directions to be issued to ensure that the parties were prepared for meaningful negotiations. The FWC also issued an order requiring additional bargaining representatives to attend the conference if applicable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established