1 Fair Work Act 2009 s.437—Protected action Association of Professional Engineers, Scientists and Managers, Australia, The v Ulan West Operations Pty Ltd (B2024/52) COMMISSIONER CRAWFORD SYDNEY, 25 JANUARY 2024 Proposed protected action ballot of employees of Ulan West Operations Pty Ltd [1] The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) has made an application under s.437 of the Fair Work Act 2009 (FW Act) for a protected action ballot order in relation to certain employees of Ulan West Operations Pty Ltd (Ulan). The application was filed on 23 January 2024. [2] On 24 January 2024, the Commission was advised that Ulan “does not oppose the making of an order, however seeks an amendment to the timetable proposed in the draft order to extend the specific date that the ballot order closes.” The draft order filed by APESMA sought a closing date of “no later than 10 working days” after the order is made. [3] The email communication from Ulan went on to explain the context of its request. The email indicated a conference between the same parties in relation to a s.240 bargaining dispute is listed before Deputy President Easton on 15 February 2024. Given the making of an order triggers a requirement under s.448A for the Commission to convene a further conference before the protected action ballot closes, Ulan submitted the extended closing date it proposed would be more efficient for all parties because it would permit the conference on 15 February 2024 to be utilised to satisfy the requirement in s.448A. [4] Later in the day on 24 January 2024, APESMA advised the Commission that it does not consent to an amendment to its application to extend the closing date of the ballot. As a result, I listed the application for hearing on 25 January 2024 via video. [5] Robert Coluccio (Senior Legal Officer) appeared for APESMA at the hearing on 25 January 2024. I granted permission for Ulan to be represented by Jack de Flamingh from Corrs Chambers Wentgarth, this was not opposed by APESMA. I was satisfied granting permission would enable to the matter to be dealt with more efficiently in accordance with s.596(2)(a) of the FW Act. [2024] FWC 212 REASONS FOR DECISION [2024] FWC 212 2 [6] APESMA relied on a declaration made by Tom Edwards (Senior Organiser) on 23 January 2024 in support of its application. Mr Edwards was not required for cross-examination. Mr Edwards’ declaration confirms: • Bargaining for the proposed agreement commenced on 21 December 2021 when Ulan issued a notice of employee representational rights. • There have been a large number of bargaining meetings. • There have been several conferences conducted by the Commission to try and resolve the bargaining dispute. The declaration also identified the outstanding issues in bargaining. [7] At the conclusion of the hearing, I informed the parties I had decided to make a protected action ballot order in the terms sought by APESMA and that the closing date for the ballot would be 10 working days from the date of this order. The following are my brief reasons for the decision. Consideration [8] I was satisfied based on Mr Edwards’ uncontested evidence that APESMA has been genuinely trying to reach agreement with Ulan. This was not contested by Ulan. [9] I was satisfied there has been a notification time for the proposed agreement and that all of the other requirements in s.443(1) of the Act have been met. [10] In relation to extending the closing date for the ballot, Ulan relied on availability issues concerning its representatives prior to 15 February 2024 and indicated APESMA’s proposed closing date would cause prejudice for Ulan because of difficulties associated with arranging attendance at an additional conference. Ulan argued any prejudice for APESMA from the later closing date was minimal. [11] Prior to the hearing, I had indicated to the parties that my provisional view was that in the absence of consent from APESMA, I did not consider it was appropriate to extend the closing date for the ballot given the requirement in s.443(3A). Section 443(3A) states: For the purposes of (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as possible. [12] In response to this issue, Ulan submitted during the hearing that the Full Bench decision in CEPU v Nilsen (NSW) Pty. Ltd1 clarifies that the protected action ballot provisions need to be considered in the context of the FW Act as a whole and that expediency is not the only consideration in terms of the closing date for the ballot. [13] APESMA filed a written submission shortly before the hearing and provided oral submissions during the hearing. APESMA submitted a later closing date would prejudice its members because it would delay their ability to take protected industrial action. APESMA [2024] FWC 212 3 submitted the purported availability issues for Ulan representatives did not justify extending the closing date for the ballot and referred to Ulan’s extensive resources and its use of external lawyers for assistance. [14] During the hearing, I raised with Mr de Flamingh that I do not have the authority to decide that Deputy President Easton will conduct a s.448A conference on 15 February 2024. That is a decision for superiors within the Commission. As a result, if I decided to extend the closing date for the ballot as sought by Ulan, it is conceivable that a s.448A conference could still be convened prior to 15 February 2024. If that occurred, APESMA would suffer the prejudice associated with a later closing date for no reason. Ulan’s submissions during the hearing did not alleviate my concerns regarding this issue. I consider the lack of certainty around the arrangements for the s.448A conference weighs against extending the closing date as sought by Ulan. [15] As I indicated at the conclusion of the hearing, I accept there is some prejudice to Ulan if the ballot closes 10 working days from the date of the order. I also accept there is prejudice to APESMA if the closing date is extended as sought by Ulan. Given there is prejudice associated with either outcome, I determined the requirement in s.443(3A) of the FW Act tipped the balance in favour of a shorter closing date. The ballot will close 10 working days after the date of the order. [16] The ballot is to be conducted by the Vero Engagement & Voting Solutions Pty Ltd T/A Vero Voting (Vero Voting). Vero Voting has been approved as an eligible protected action ballot agent under s.468A of the Act2 and consequently is authorised to conduct the ballot. [17] An order has been separately issued in PR770643. [18] This matter will be assigned to a Member of the Commission to conduct a s.448A conference and the Member will issue an Order requiring 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. COMMISSIONER Appearances: R Coluccio on behalf of APESMA. J de Flamingh on behalf of Ulan. Hearing details: [2024] FWC 212 4 25 January. Microsoft Teams. 2024. Printed by authority of the Commonwealth Government Printer <PR770644> 1 [2023] FWCFB 134. 2 Vero Engagement & Voting Solutions Pty Ltd T/A Vero Voting [2023] FWC 1531.