Mining and Energy Union v Programmed Facility Management Pty Ltd
[2024] FWC 718
•20 MARCH 2024
| [2024] FWC 718 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Mining and Energy Union
v
Programmed Facility Management Pty Ltd
(B2024/229)
| DEPUTY PRESIDENT HAMPTON | ADELAIDE, 20 MARCH 2024 |
Proposed protected action ballot of employees of Programmed Facility Management Pty Ltd
This is an application by the Mining and Energy Union (MEU 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 Programmed Facility Management Pty Ltd (Programmed or Employer).
On 19 March 2024, the Commission was advised that Programmed did not, in effect, 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 Mr Andrew Smith, Organiser, setting out the steps taken by the MEU 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 as an eligible protected action ballot agent under s 468A of the Act[1] and consequently is authorised to conduct the ballot.
The application and draft order sought that ‘the date by which voting in the protected action ballot is to close is 25 March 2024’. That is, in effect, a ballot period of three working days from the date of this Order. The Commission subsequently sought submissions from the parties by reference to a potential closing date of 5 April 2024.
In response to the Commission’s proposal, the Applicant sought for the ballot period to be set by reference to a closing date of Friday 29 March 2024.[2] The MEU submitted various considerations, including the fact that the Applicant and Employer are the only bargaining representatives, the parties have recently participated in a s.448A conference[3] and that the Applicant consents to the s.448 conference being conducted via teleconference.
The Employer supported the foreshadowed closing date of 5 April 2024 but did not otherwise make submissions on the considerations involved.
Having regard to all of the circumstances of this matter, including the positions and particular situation of the parties, the impact of the Easter holiday period, and the various other considerations outlined in CEPU v Nilsen Pty Ltd [2023] FWCFB 134, I have determined that for the purposes of s.443(3)(c) of the Act, the date by which the voting in the protected action ballot in this matter is to close is 2 April 2024. This is the equivalent of seven (7) working days after the date of the Order. This also establishes the ballot period for the purpose of s.448A(2) of the Act.
An Order has been separately issued in PR772540.
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 involved in 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] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.
[2] This would be the first in a series of public holidays associated with the Easter period.
[3] B2024/37.
Printed by authority of the Commonwealth Government Printer
<PR772541>
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