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

[2024] FWC 838

[2024] FWC 838

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

Wormald Australia Pty Ltd

(B2024/278)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 3 APRIL 2024

Proposed protected action ballot of employees of Wormald Australia Pty Ltd

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 Wormald Australia Pty Ltd (Wormald or Employer).

1. On 2 April 2024, the Commission was advised that Wormald, in effect, did not object to the Application.

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 Fred Barbin, CEPU, 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 Wormald, 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 ballot is to be conducted by the Vero Engagement & Voting Systems Solutions Pty Ltd T/A Vero Voting (Vero Voting). Vero Voting has been approved as an eligible protected action ballot agent under s 468A of the Act and consequently is authorised to conduct the ballot.[1]

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 17 April 2024. [2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. I observe that the CEPU agreed to delete one proposed ballot question, without concession as to the validity of the provision. Further, Wormald subsequently sought to challenge whether what is now question 19 in clause 5 of the Order was capable of representing industrial action within the meaning of s.19 of the Act. In my view, it clearly does as it involves on face value the performance of work in a manner different from that usually performed (it also occurs during work time) and which would lead to a restriction on, or at the very least a delay in the performance of, work. This fits squarely within s.19(1)(a) of the Act.

1. An Order has been separately issued in PR773054.

1. 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 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] Vero Engagement & Voting Solutions T/A Vero Voting[2023] FWC 1531.

[2] This date was specified in the proposed order and is, in effect, ten (10) working days from the date of the Order.

Printed by authority of the Commonwealth Government Printer

<PR773055>