Fair Work Commission|2024-11-01

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Paul Buchanan v Coca-Cola Europacific Partners Australia Pty Ltd [2024] FWC 3032 (1 November 2024)

s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Paul Buchanan

Coca-Cola Europacific Partners Australia Pty Ltd

Proposed protected action ballot of employees of Coca-Cola Europacific Partners Australia Pty Ltd

[1] This is an application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or First Applicant) and Paul Buchanan (Second Applicant), made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in relation to certain employees of Coca-Cola Europacific Partners Australia Pty Ltd (Coca-Cola or Employer).

[2] On 31 October 2024, the Commission was advised that the Employer objected to the Application on the grounds that the employees to be subject to the ballot, the proposed ballot questions, and the voting process in the application did not comply with the Act.

[3] In the circumstances, I scheduled a hearing to be conducted today to determine the matter. In the lead up to the hearing the parties held constructive discussions and ultimately reached a common position on the above grounds. In that light, I have granted leave to amend the application and conducted a short hearing in relation to the matter. I have issued the order in the amended terms sought by the CEPU and the Second Applicant which is not opposed by the Employer. I now provide my reasons for that decision.

[4] The order is for a single ballot. One of the objections initially raised by the Employer was that although s.437(1) of the Act provides for two or more bargaining representatives, acting jointly, to apply for a PABO, the Act does not permit joint applicants to combine their constituents for the purposes of conducting a single ballot. The Employer ultimately did not press this objection. In MUA v Esperance Ports Sea and Land,[1] the Commission ordered two ballots arising from a joint application whereas in AMWU v Komatsu Australia Pty Ltd, [2] the Commission ordered a single ballot arising from a joint application. Although these cases do not specifically deal with the issue of whether the Act permits a single ballot to be ordered pursuant to a joint application, there does not appear to me to be any impediment to the Commission making such an order, particularly where, as in this case, there is no objection by the employer.

[5] On the basis of the material before me, including the declarations of Lawrence Duff, Organiser, and Paul Buchanan, Operator, setting out the steps taken by the CEPU and the Second Applicant in bargaining with the Employer and that they have been, and are, genuinely trying to reach agreement with Coca-Cola, 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.

[6] The ballot is to be conducted by Vero Engagement and Voting Solutions Pty Ltd (Vero Voting). Vero Voting has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

[7] 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 15 November 2024.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

[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 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.

[3] This is, in effect, 10 working days from the making of the Order and was the specific date sought in the application.

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Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Paul Buchanan v Coca-Cola Europacific Partners Australia Pty Ltd [2024] FWC 3032