Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Wabtec Control Systems Pty Ltd

[2024] FWC 2836

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

Wabtec Control Systems Pty Ltd

(B2024/1326)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 11 OCTOBER 2024

Proposed protected action ballot of employees of Wabtec Control Systems Pty Ltd

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 Wabtec Control Systems Pty Ltd (Wabtec or Employer).

On 11 October 2024, the Commission was advised that the Employer, in effect, did not object to the Application.

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 Chelsea Hill, Legal and Industrial Admin Facilitator, 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 Wabtec, 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 Vero Engagement & Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act 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 22 October 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR780158.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives 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] This was the specific date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), which sought a protected action ballot order against Wabtec Control Systems Pty Ltd. The application was made under section 437 of the Fair Work Act 2009. The dispute centred around the union's attempt to organise a ballot for its members at Wabtec to vote on potential protected industrial action. Wabtec did not oppose the application, which facilitated the Commission's decision to proceed without a formal hearing.

The primary legal issue for the Commission was whether the conditions set out in section 443 of the Fair Work Act for a protected action ballot were satisfied. This involved verifying the union's genuine efforts to negotiate an enterprise agreement with Wabtec and ensuring the ballot met all statutory requirements. The Commission had to assess the declaration of Chelsea Hill, who detailed the bargaining process and the union's ongoing efforts to reach an agreement. Additionally, the Commission needed to confirm the appointment of Vero Engagement & Voting Solutions Pty Ltd as the authorised ballot agent.

Upon reviewing the evidence, the Deputy President Hampton found that all statutory requirements for the ballot had been met. The Commission confirmed the union's good faith in attempting to negotiate and established the closing date for voting on the proposed agreement as 22 October 2024. This decision set the ballot period and mandated the conduct of a compulsory conciliation conference under section 448A of the Act. The Commission assigned another member to oversee this conference and issued an order for the attendance of all bargaining representatives, aiming to facilitate meaningful negotiations.

In conclusion, the Fair Work Commission granted the CEPU's application for a protected action ballot, setting the closing date for voting and directing the conciliation conference. This decision ensures that the ballot process adheres to the requirements of the Fair Work Act and aims to encourage further negotiations between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established