The Association of Professional Engineers, Scientists and Managers, Australia v CS Energy Limited T/A CS Energy

[2024] FWC 1199

[2024] FWC 1199

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

The Association of Professional Engineers, Scientists and Managers, Australia

v

CS Energy Limited T/A CS Energy

(B2024/515)

DEPUTY PRESIDENT HAMPTON SYDNEY, 8 MAY 2024

Proposed protected action ballot of employees of CS Energy Limited covered by the Callide Power Station Enterprise Agreement 2021.

1. This is an application by The Association of Professional Engineers, Scientists and Managers, Australia (APESMA 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 CS Energy Limited T/A CS Energy (CS Energy or Employer).

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

1. On 8 May 2024, the Respondent advised that it did not object to the application subject to there being an extended notice period of seven (7) working days in relation to certain proposed forms of industrial action. This was subsequently agreed by the CEPU.

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 Jessica Hensman, Acting Director, setting out the steps taken by the APESMA in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with CS Energy, 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 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.

1. 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 27 May 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking certain forms of industrial action set out in Clause 15 of the Order made by the Commission. The default period of three working days will apply to the remaining forms of action arising from the ballot questions.

1. An Order has been separately issued in PR774646.

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 B2024/477, B2024/480, B2024/481, B2024/487. To the extent that this involves additional bargaining representatives, that Member will issue an 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] Respectively, B2024/477, B2024/480, B2024/481 and B2024/487.

[2] As sought in the application.

Printed by authority of the Commonwealth Government Printer

<PR774647>