Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Zinfra Contracting Pty Ltd T/A Jemena Infrastructure Services Summary

[2024] FWC 2263

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

Zinfra Contracting Pty Ltd T/A Jemena Infrastructure Services

(B2024/1075)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 23 AUGUST 2024

Proposed protected action ballot of employees of Zinfra Contracting Pty Ltd T/A Jemena Infrastructure Services

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 Zinfra Contracting Pty Ltd T/A Jemena Infrastructure Services (Zinfra or Employer).

On 22 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 Allen Hicks, NSW Branch Secretary, 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 Zinfra, 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 and 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 6 September 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 PR778593.

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 for 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 is, in effect, 10 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 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) applied to the Fair Work Commission for a protected action ballot order against Zinfra Contracting Pty Ltd T/A Jemena Infrastructure Services. The matter was heard by Deputy President Hampton in Adelaide. The application was made under section 437 of the Fair Work Act 2009, with the aim of conducting a ballot for proposed protected industrial action by employees of Zinfra. The employer did not object to the application, leading the Commission to proceed without a hearing. The CEPU submitted that it had been genuinely attempting to reach an agreement with the employer and that all requirements under section 443(1) of the Act had been fulfilled.

The legal issues before the court were whether the CEPU had genuinely been attempting to reach an agreement with the employer and whether all the statutory requirements for a protected action ballot had been met. The court needed to determine if the CEPU had taken adequate steps in bargaining and if the timing and procedure for the ballot were appropriate under the Fair Work Act. The CEPU provided a declaration from its NSW Branch Secretary, Allen Hicks, detailing the bargaining process and the union's efforts to reach an agreement. Vero Engagement and Voting Solutions Pty Ltd, the approved ballot agent, was authorised to conduct the ballot, and the Commission set the closing date for voting as 6 September 2024.

After reviewing the materials submitted by the CEPU and considering the lack of objection from Zinfra, Deputy President Hampton was satisfied that the union had genuinely attempted to reach an agreement and that the requirements for a ballot were met. The Commission issued an order allowing the ballot to proceed with Vero as the authorised ballot agent, setting the closing date for voting at 6 September 2024. This decision also established the ballot period for any subsequent compulsory conciliation conference under section 448A of the Act. The matter was to be reassigned to another Commission member to handle the conciliation conference.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Zinfra Contracting Pty Ltd T/A Jemena Infrastructure Services

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established