Construction, Forestry, Maritime, Mining and Energy Union v UGL Engineering Pty Ltd

[2023] FWC 2037

[2023] FWC 2037

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

UGL Engineering Pty Ltd

(B2023/840)

DEPUTY PRESIDENT LAKE BRISBANE, 18 AUGUST 2023

Proposed protected action ballot of employees of UGL Engineering Pty Ltd

1. This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Respondent, UGL Engineering Pty Ltd (UGL). The application was lodged on 15 August 2023.

1. The proposed agreement is not a greenfields agreement, or a multi-enterprise agreement that is a cooperative workplace agreement, and this application is permitted.[1]

1. There has also been a notification time for the proposed agreement, the present enterprise agreement has passed its nominal expiry date, and the application and accompanying documentation is in order. The application and proposed order have also been provided by the CFMMEU to UGL and the proposed protected action ballot agent. This meets various requirements[2] for the making of a PABO.

1. The application was supported by a statutory declaration made by Mr Kane Lowth, CFMMEU Divisional Branch Assistant Secretary.

1. On 18 August 2023, the Commission was advised that UGL did not object to the application providing that they received four (4) days’ notice of any industrial action instead of three (3) days’ notice, and that proposed orders in relation to the provision of personal information of eligible voters to the ballot agent, and the retention of such information, were amended. UGL provided an amended order reflecting its requests, with the consent and support of the CFMMEU.

1. I have made the proposed PABO, largely in the terms as sought, and this has been issued by the Commission on 18 August 2023.

1. Section 444 of the Act now relevantly provides as follows:

“444 Ballot agent and independent advisor

Protected action ballot agent

(1A) The FWC must, in accordance with subsections (1B) to (1D) of this section, decide the person or entity that is to be the protected action ballot agent for the protected action ballot.

(1B)The person or entity must be the person or entity specified in the application for the protected action ballot order as the person or entity the applicant wishes to be the protected action ballot agent, unless:(a)the person or entity specified in the application does not meet the requirements of subsection (1C) (unless subsection (1D) applies); or(b)the FWC is satisfied that there are exceptional circumstances that justify another person or entity being the protected action ballot agent.

(1C) The person or entity must be an eligible protected action ballot agent.

(1D) Subsection (1C) does not apply in relation to a person if the FWC is satisfied that:

(a)there are exceptional circumstances that justify the ballot not being conducted by an eligible protected action ballot agent; and

(b)the person is a fit and proper person to conduct the ballot; and(c)any other requirements prescribed by the regulations are met.

Note: Other than the Australian Electoral Commission, an entity that is not a person cannot be the protected action ballot agent for a protected action ballot.”

1. There are presently no eligible protected action ballot agents approved by the Commission beyond the Australian Electoral Commission (AEC), which is authorised directly by the Act. The CFMMEU propose that Democratic Outcomes Pty LtdT/A CiVS (CiVS) be the ballot agent and, in effect, rely upon the exceptional circumstances contemplated in s.444(1D)(a). CiVS has agreed to be the ballot agent, and this has been confirmed in evidence that is before the Commission.

1. The operation of these provisions and the context for the assessment of exceptional circumstances has been discussed in a number of decisions.[3]

1. Deputy President Hampton was satisfied that there were exceptional circumstances that justified the approval of the non-eligible ballot agent proposed in this matter.[4] Those circumstances included the nature of the workforce and their roster arrangements and the efficiency and effectiveness of electronic voting in that particular context. I am satisfied that the exceptional circumstances have been met in this matter.

1. The proposed protected action ballot agent must also meet the requirements of s.444(1D)((b) and (c) of the Act. This involves an assessment of whether the proposed protected action ballot agent is a fit and proper person to conduct the ballot and whether they also meet the requirements established by the regulations, and in particular, reg 3.11.

1. Deputy President Hampton has found in a number of decisions that CiVS is a fit and proper person to act as a ballot agent. The material before the Commission also confirms that this remains the case and that CiVS complies with all of these requirements. This material included details about the nature of the information and other systems to be used for the ballot, compliance with the Privacy Act and related principles, and steps that will be taken to ensure that the ballot is conducted fairly, democratically, and expeditiously by fit and proper individuals.

1. I have approved CiVS to act as the protected action ballot agent in this matter under s.444(1D) of the Act.

1. No independent advisor for the ballot was proposed or appointed.

1. For the purposes of s.443(3)(c) and s.448A(2) of the Act, I have set the ballot period at ten (10) working days by reference to the date of effect of the PABO (18 August 2023).

1. On the basis of the material before me, I was satisfied that the CFMMEU has been, and is, genuinely trying to reach an agreement with UGL. This meets the requirements of s.443(1)(b) of the Act. I was also satisfied that all of the other statutory requirements for the issuing of the PABO in this matter were met. Under s.443 of the Act, the Commission was then required to issue the PABO.

1. An order has been separately issued in PR765203.

1. This matter will still be assigned to me to conduct the s.448A conference and I will issue the Order requiring attendance at the conference. Directions will also be issued to ensure that the parties attend the conference are ready to conduct meaningful negotiations.
   

DEPUTY PRESIDENT

[1] Fair Work Act 2009 (Cth) s. 437(2).

[2] Ibid ss.437-438 and 440.

[3] AMWU v Otis Elevator Company Pty Limited T/A Otis Elevator Company[2023] FWC 1337; AMWU v UGL Rail Services Pty Limited[2023] FWC 1365(AMWU v UGL); CEPU v UGL Rail Services Pty Limited[2023] FWC 1381(CEPU v UGL); AMOU v Solstad Australia Pty Ltd [2023] FWC 1389.

[4] AMWU v Otis Elevator Company Pty Limited T/A Otis Elevator Company[2023] FWC 1337; AMWU v UGL Rail Services Pty Limited[2023] FWC 1365(AMWU v UGL); CEPU v UGL Rail Services Pty Limited[2023] FWC 1381(CEPU v UGL); AMOU v Solstad Australia Pty Ltd [2023] FWC 1389.

Printed by authority of the Commonwealth Government Printer

<PR765204>