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 Keolis Downer Adelaide Pty Ltd (B2024/82) DEPUTY PRESIDENT HAMPTON ADELAIDE, 5 FEBRUARY 2024 Proposed protected action ballot of employees of Keolis Downer Adelaide Pty Ltd [1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU 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 Keolis Downer Adelaide Pty Ltd (Keolis or Employer). [2] On 5 February 2024, the Commission was advised that Keolis, in effect, did not object to the Application, as amended.1 [3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing. [4] On the basis of the material before me, including the declaration of Mr Paul Scudds on behalf of the CEPU, setting out the steps taken by the CEPU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Keolis, 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. [5] I observe that the Parties agreed for the CEPU to provide the following undertaking, which has also been added to the Order: The CEPU 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, CEPU members will be available to perform work. Keolis Downer Adelaide Pty Ltd must take all reasonable measures to ensure employees and alternative available sub-contractors not participating in industrial action are utilised to minimise personal health and safety risks. [2024] FWC 298 DECISION [2024] FWC 298 2 CEPU members will not engage in industrial action that would endanger the life, personal safety, health or welfare of the population or part thereof. [6] 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 25 March 2024.2 This also establishes the ballot period for the purpose of s.448A(2) of the Act. [7] 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 industrial action set out in the Order made by the Commission. [8] An order has been separately issued in PR770973. [9] 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 Printed by authority of the Commonwealth Government Printer <PR770974> 1 The Respondent requested the inclusion of a Period of Extended Notice and Undertaking clause within the PABO. The Applicant subsequently provided the Commission with an amended F34 reflecting the above inclusions. 2 This is the date sought by the Applicant. It is also, in effect, 34 working days from the making of the Order.