Construction, Forestry and Maritime Employees Union v Etex Australia Pty Ltd

[2024] FWC 1877

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

Etex Australia Pty Ltd

(B2024/899)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 17 JULY 2024

Proposed protected action ballot of employees of Etex Australia Pty Ltd

This is an application by the Construction, Forestry and Maritime Employees 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 Etex Australia Pty Ltd (Etex or Employer).

I note that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)[1] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 17 July 2024, the Commission was advised that the Employer 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 Mark Cunningham, Union 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 Etex, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS 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 5 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 PR777102.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. 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] B2024/900.

[2] This is, in effect, 10 working days from the anticipated commencement of the ballot and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry and Maritime Employees Union (CFMEU) lodged an application with the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009, seeking a protected action ballot order for certain employees of Etex Australia Pty Ltd. The dispute concerns a proposed enterprise agreement between the CFMEU and Etex. The FWC was required to determine whether the CFMEU had satisfied the conditions under section 443(1) of the Act, including the notification time and genuine efforts to reach agreement. This involved examining the declaration by Mark Cunningham, a Union Organiser, and confirming that the ballot agent, Democratic Outcomes Pty Ltd, was approved and authorised to conduct the ballot.

The Deputy President Hampton considered the application on the papers, noting that Etex did not object to the CFMEU's application. The Deputy President was satisfied that all requirements under section 443(1) of the Act had been met, including the notification time for the proposed agreement and the union's genuine attempts to negotiate. The Deputy President also set the closing date for voting on the ballot as 5 August 2024, which established the ballot period. This decision facilitated the conduct of the ballot and the subsequent compulsory conciliation conference, which was to be conducted by another Member of the Commission.

The FWC issued an order approving the ballot and setting the closing date for voting. The matter was then assigned to another Member of the Commission for the compulsory conciliation conference, along with related proceedings. Directions were expected to be issued to ensure that all bargaining representatives were prepared for meaningful negotiations. This outcome ensured that the process for the proposed enterprise agreement could progress with the participation of all relevant parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established