1
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia
v
UGL Rail Services Pty Limited
(B2023/548)
DEPUTY PRESIDENT HAMPTON ADELAIDE, 13 JUNE 2023
Proposed protected action ballot of employees of UGL Rail Services Pty Limited.
1. Background
[1] This is an application by the Communications, Electrical, Electronic, Energy,
Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made under
s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in relation to
certain employees of UGL Rail Services Pty Limited (UGL). The application was lodged on
8 June 2023.
[2] The group of employees to the balloted are those employees of UGL Rail Services Pty
Limited employed at 30 Clyde Street, Hamilton North NSW 2292 premises and who are
members of the CEPU who would be subject to the proposed enterprise agreement and for
whom the CEPU is the bargaining representative. I observe that this is a subset of the entire
workforce to be covered by the proposed agreement, with the majority of the workforce already
subject to PABO applications that were previously granted.1 It appears that the group concerned
here are based at a different work location and the application has been taken to avoid any
dispute about the capacity to take protected industrial action.
[3] This application is amongst the first to be considered by the Commission following the
commencement of a number of bargaining changes brought about by the Fair Work Legislation
Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act). These changes commenced
on 6 June 2023 and amongst other matters, impact upon the making of PABOs and the approval
of protected action ballot agents who might conduct the ballot should an order be made.
[4] For context, I also observe that this application was dealt with in conjunction with a
related matter2 in which the “Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) was also
seeking a PABO in connection with the same proposed enterprise agreement being negotiated
here. The proposed agreement in each case is not a greenfields agreement, or a multi-enterprise
agreement that is a cooperative workplace agreement, and this application is permitted.3
[2023] FWC 1381
REASONS FOR DECISION
AUSTRALIA FairWork Commission
[2023] FWC 1381
2
[5] 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
CEPU to UGL and the proposed ballot agent. This meets various requirements4 for the making
of a PABO.
[6] The application was supported by a statutory declaration of Brad McDougall, CEPU
Organiser.
[7] On 9 June 2023, the Commission was advised that UGL did not object to the application.
However, a hearing was conducted on 13 June 20235 to deal with some other aspects that arise
from the Amending Act. I observe that during the hearing, UGL advanced opposing
submissions on the matters raised by the Commission and that are addressed in the Decision
below.
[8] Having heard the matter, I advised the parties that an Order would be issued largely in
terms as sought by the applicant. This has been done.6 My reasons for so doing are set out
herein.
2. The Protected Action Ballot Agent
[9] 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
[2023] FWC 1381
3
(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.”
[10] There are presently no eligible protected action ballot agents approved by the
Commission beyond the Australian Electoral Commission (AEC). The CEPU propose that
Democratic Outcomes Pty Ltd T/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.
[11] For reasons set out in other Decisions,7 my view is that the test for whether exceptional
circumstances exist is whether the circumstances are such that they are out of the normal course
of events, unusual, uncommon or extraordinary. It is open to conclude that the recency of the
amendments to the protected action ballot agent provisions of the Act are exceptional
circumstances. The recency of these changes, and the fact that the scheme of the Act
contemplates that there will be a choice of eligible ballot agents, are unusual and are not
something that have occurred before, making it uncommon.
[12] Importantly, if it is found that exceptional circumstances do exist, those circumstances
must justify the FWC granting an order for a non-eligible person to act as the protected action
ballot agent. This arises from the language of s.444(1D)(a) and calls for consideration of the
purpose of the relevant provision.8
[13] Section 444 of the Act aims to protect the interests of the employees participating in the
ballot and those of the employer involved. Further, there is a statutory imperative arising from
the scheme of the Act and the associated regulations that any ballot that might authorise the
taking of industrial action be conducted in a proper, democratic, prompt and robust manner by
agents that are fit and proper persons to undertake that task.
[14] Accordingly, the exceptional circumstances that might justify why the FWC should
appoint an agent which is not an eligible protection action ballot agent should be assessed in
that context.
[15] I have found that exceptional circumstances do arise associated with the recency of the
new provisions. However, whilst each case must be assessed on its own merits, I would not
necessarily consider that by itself, the absence of eligible protected action ballot agents beyond
the AEC at this point would constitute exceptional circumstances warranting the exercise of the
discretion. In this case, the proposed ballot agent has already conducted a ballot for the same
bargaining representatives at this workplace as part of the same bargaining process. Further, it
would be problematic if significantly different processes and more lengthy timeframes were
adopted for what are indirectly related PABOs. I have also taken into account that UGL did not
accept that there were relevant exceptional circumstances but took no issue with the approval
of the proposed ballot agent, and that the proposed agent can undertake the ballot in a prompt
manner. On balance, I was satisfied that there are exceptional circumstances that justified the
approval of the non-eligible ballot agent proposed in this matter.
[2023] FWC 1381
4
[16] 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.
[17] As to fit and proper person, the CEPU has provided a Statutory Declaration of Mr Mike
Michael, Managing Director of CiVS. I observe that Mr Michael and CiVS have previously
been found by the Commission to be a fit and proper person to conduct a protected action ballot
based upon Mr Michael’s declared education, experience and attributes.9 The material now
before the Commission includes confirmation of extensive ballot and other professional
experience and the absence of criminal convictions of any kind within the business.
[18] The Fair Work Regulations 200910 now relevantly provide in reg 3.11 as follows:
“(1) For the purposes of paragraph 444(1D)(c) of the Act, this regulation prescribes
requirements that the FWC must be satisfied have been met before a person
becomes the protected action ballot agent for a protected action ballot.
Note: The person must also be a fit and proper person to conduct a protected action
ballot.
(2) The person must be capable of ensuring the secrecy and security of votes cast in
the ballot.
(3) The person must be capable of ensuring that the ballot will be fair and
democratic.
(4) The person must be capable of conducting the ballot expeditiously.
(5) The person must have agreed to be a protected action ballot agent.
(6) The person must be bound to comply with the Privacy Act 1988 in respect to the
handling of information relating to the protected action ballot.
(7) If the person is an industrial association or a body corporate, the FWC must be
satisfied that:
(a) each individual who will carry out the functions of the protected action
ballot agent for the industrial association or body corporate is a fit and
proper person to conduct the ballot; and
(b) the requirements in subregulations (2) to (6) are met for the individual.”
[19] The evidence provided on behalf of the proposed ballot agent also confirms to my
satisfaction compliance with all of these requirements. This includes 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.
[2023] FWC 1381
5
[20] I have approved CiVS to act as the protected action ballot agent in this matter under
s.444(1D) of the Act.
[21] No independent advisor for the ballot was proposed or appointed.
3. The ballot period
[22] The application sought a ballot period of 5 working days (from the commencement of
the ballot). This was proposed on the basis that CiVS could undertake the ballot within that
timeframe. However, in consequence of the issuing of the PABO, the Commission was obliged
to conduct a compulsory conciliation conference under s.448A of the Act involving all
bargaining representatives for the proposed enterprise agreement. I observe that this will also
include the AMWU. It is not clear whether there are independent bargaining representatives
involved with this bargaining process and this will need to be clarified. This conciliation
conference must be conducted during the ballot period and involves the Commission issuing a
formal Order for the bargaining representatives to attend and the necessary lead time to permit
both the parties and the Commission to be prepared. I have set the ballot period at 10 working
days from the date of effect of the PABO (13 June 2023). The period has been set having regard
to the implications of the above requirements and the fact there is only a small group of
employees to be balloted.
[23] This matter will be assigned to another Member of the Commission who will issue the
Order requiring attendance at the conference, and it is likely that Directions will also be issued
to ensure that the parties attend the conference ready to conduct meaningful negotiations.
4. Conclusions
[24] On the basis of the material before me, I was satisfied that the CEPU 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.
[25] An order has been separately issued in PR762993.
THE FAIR WORK COMMISSION AUSTRALLA THE SEAL
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr762993.pdf
[2023] FWC 1381
6
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR763010
1 “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing
Workers’ Union (AMWU) v UGL Rail Services Pty Ltd [2023] FWC 923 and Communications, Electrical, Electronic, Energy,
Information, Postal, Plumbing and Allied Services Union of Australia v UGL Rail Services Pty Ltd [2023] FWC 977.
2 B2023/547.
3 Act s 437(2).
4 Act ss. 437, 438, 440.
5 Monday 12 June 2023 was a public holiday (non-working day) in the relevant States.
6 PR762993 issued 13 June 2023.
7 AMWU v Otis Elevator Company Pty Limited T/A Otis Elevator Company [2023] FWC 1337.
8 CEPU v Australian Postal Corporation (2007) 167 IR 4 at [11].
9 See amongst many examples The Australian Workers’ Union v Jadestone Energy (Australia) Pty Ltd [2021] FWC 227.
10 As amended by the Fair Work and Other Legislation Amendment (Secure Jobs, Better Pay) Regulations 2023, made on
25 May 2023.
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc923.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc977.pdf
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr762993.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1337.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc227.htm
