Construction, Forestry, Maritime, Mining and Energy Union v Ventia Utility Services Pty Limited and Downer Utilities Australia Pty Ltd T/A Downer Ventia Joint Venture

[2023] FWC 2974

[2023] FWC 2974

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Ventia Utility Services Pty Limited And Downer Utilities Australia Pty Ltd T/A Downer Ventia Joint Venture

(B2023/1247)

DEPUTY PRESIDENT WRIGHT SYDNEY, 14 NOVEMBER 2023

Proposed protected action ballot of employees of Ventia Utility Services Pty Limited and Downer Utilities Australia Pty Ltd

1. This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU 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 Ventia Utility Services Pty Limited and Downer Utilities Australia Pty Ltd T/A Downer Ventia Joint Venture (Downer Ventia or Employers). 

1. I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU – ETU and Plumbers Union) have made separate applications for a protected action ballot order in relation to the same proposed agreement.[1]

1. On 14 November 2023, the Commission was advised that Downer Ventia did not, in effect, 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 Kane Lowth, CFMMEU Divisional Branch Assistant Secretary, setting out the steps taken by the CFMMEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Downer Ventia Joint Venture, 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 Australian Electoral Commission. 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 28 December 2023.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. The Parties agreed for the Applicant to provide the following undertaking to appear on all notices of protected industrial action from the CFMMEU, as follows:

The CFMMEU undertakes to ensure that in an emergency situation where there is a risk to personal health and safety and where no other workers are available, CFMMEU members will be available to perform work. CFMMEU members will not engage in industrial action that would endanger the life, personal safety, health or welfare of the population or part thereof. For example, this includes where sewerage is flowing down a street or where a CFMMEU member is required to isolate a pump station in the event of a burst water main.

1. Based on the parties’ agreement in relation to the terms of the draft orders, I am satisfied that there are exceptional circumstances justifying the period of written notice being longer than 3 working days. Pursuant to s.443(5) of the Act, the period of written notice for the purposes of s414(2)(b) of the Act is 5 working days for the proposed action in each ballot question.

1. An Order has been separately issued in PR768256.

1. This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matters (B2023/1193, B2023/1198 and B2023/1241). To the extent that this matter involves any additional bargaining representatives, the Commission will also issue the Order requiring their attendance 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] B2023/1193, B2023/1198 and B2023/1241.

[2] This is, in effect, 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

<PR768255>