Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Weathertex Pty Limited Summary

[2024] FWC 2059

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

Weathertex Pty Limited

(B2024/974)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 1 AUGUST 2024

Proposed protected action ballot of employees of Weathertex Pty Limited

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 Weathertex Pty Limited (Weathertex or Employer).

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

On 1 August 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 Bradley McDougall, 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 Weathertex, 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 23 August 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR777791.

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. 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] Respectively, B2024/971 and B2024/973.

[2] This is, in effect, 15 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order concerning certain employees of Weathertex Pty Limited. The application was made under section 437 of the Fair Work Act 2009, and the Australian Workers’ Union and the Australian Manufacturing Workers’ Union also made separate applications for a ballot order regarding the same proposed enterprise agreement. Weathertex did not object to the CEPU's application, leading the Commission to decide the matter based on the submitted documents without a hearing.

The key legal issue for the Commission was to determine if the CEPU had satisfied all requirements for a protected action ballot order, including demonstrating that it had genuinely tried to reach an agreement with Weathertex and setting an appropriate notification period. The CEPU provided a declaration by its Organiser, Bradley McDougall, detailing the bargaining process and confirming the union's genuine efforts to negotiate with Weathertex. The Commission was also required to establish a closing date for the ballot, ensuring it adhered to the statutory timeframe.

The Commission found that the CEPU had met all necessary requirements under section 443(1) of the Act, confirming the union's genuine attempts to negotiate and the appropriateness of the notification period. Vero Engagement & Voting Solutions Pty Ltd was approved to conduct the ballot as it met the criteria under section 468A of the Act. The Commission set the closing date for the ballot as 23 August 2024, which aligns with the period requested in the application. An order was issued to conduct the compulsory conciliation conference under section 448A, requiring the attendance of all bargaining representatives to facilitate meaningful negotiations.

In conclusion, the Fair Work Commission granted the CEPU's application for a protected action ballot order and set the closing date for the ballot. The Commission also issued an order for a compulsory conciliation conference to proceed with negotiations among the parties involved.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Weathertex Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established