Construction, Forestry and Maritime Employees Union v Eptec Pty Ltd T/A Eptec

[2024] FWC 689

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

Eptec Pty Ltd T/A Eptec

(B2024/223)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 19 MARCH 2024

Proposed protected action ballot of employees of Eptec Pty Ltd T/As Eptec

This is an application by Construction, Forestry, Mining and Energy Union (CFMEU 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 Eptec Pty Ltd (Eptec or Employer).

On 18 March 2024, the Commission was advised that the Employer did not object to the Application.

On the basis of the material before me, including the declaration of Phil Kennedy, CFMEU Organiser, setting out the steps taken by the CFMEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with them, 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 the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved[1] 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 2 April 2024. This also establishes the ballot period for the purpose of s.448A(2) of the Act.[2]

An Order has been separately issued in PR772436.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation 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] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.

[2] This is the date sought in the draft order. This is also, in effect, 14 working days from the date of effect of the Order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Eptec Pty Ltd. The application was made following the union's efforts to negotiate an agreement with the employer, which had been unsuccessful. The employer did not object to the application, and the Commission was satisfied that the union had met all the necessary requirements for the ballot. The ballot is to be conducted by Democratic Outcomes Pty Ltd, trading as CiVS, an approved agent under section 468A of the Act. The Commission determined that voting would close on 2 April 2024, which also establishes the ballot period for the purposes of section 448A(2) of the Act.

The primary legal issue before the Commission was whether the conditions stipulated in section 443 of the Fair Work Act had been satisfied, particularly whether there was a notification time in relation to the proposed agreement and whether the union had genuinely attempted to reach an agreement with the employer. The Commission had to ascertain if the union's declaration, including the steps taken in bargaining and the genuine efforts to reach an agreement, met the statutory requirements. Additionally, the Commission needed to verify the appropriateness of the proposed ballot period and the eligibility of the ballot agent.

The Deputy President of the Fair Work Commission concluded that the union had genuinely attempted to reach an agreement and that all the statutory requirements had been met. The declaration provided by the union, detailing the bargaining process and efforts made to reach an agreement, was deemed sufficient. The Deputy President also confirmed the eligibility of CiVS as a ballot agent and set the closing date for voting as 2 April 2024. The decision was made in the context of the employer's lack of objection and the union's compliance with the Act. The matter will be assigned to another member of the Commission for a compulsory conciliation conference, likely accompanied by directions to ensure meaningful negotiations between the parties.

An order was issued separately in PR772436, confirming the ballot process and the timeline set by the Commission. The decision ensures that the union can proceed with the ballot while also setting the stage for further conciliation efforts under section 448A of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established