DECISION

Fair Work Act 2009
s.437—Protected action

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union;
and
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Co-Operative Bulk Handling Limited
(B2018/538)

COMMISSIONER WILLIAMS

PERTH, 23 JULY 2018

Proposed protected action ballot of employees of Co-Operative Bulk Handling Limited.

[1] This is an application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (the AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) (collectively, the Applicants) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Co-Operative Bulk Handling Limited (the Respondent).

[2] On 3 July 2018 the Respondent advised the Commission it opposed the application.

[3] On 6 July 2018 the Commission listed the matter for hearing and issued Directions to the parties. Both parties complied with the Commission’s Directions.

[4] On 23 July 2018 the Respondent advised it wishes to consent to the application in accordance with the amended draft order filed by the Applicants on 19 July 2018.

[5] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[6] On the basis of the material before me, including the statutory declaration of Mr Alan Lindsay of the AMWU setting out the steps taken by the Applicants in bargaining with the Respondent and that the Applicants have been, and are, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[7] An order [PR609206] will be issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Co-Operative Bulk Handling Limited. The Union sought to conduct a protected action ballot among its members, who were employees of Co-Operative Bulk Handling Limited, to gauge support for potential industrial action. Co-Operative Bulk Handling Limited opposed the ballot, arguing it would disrupt their operations and breach an existing enterprise agreement.

The central legal issues that the Fair Work Commission needed to address were whether the Union had the right to conduct a protected action ballot and, if so, whether this right could be lawfully restricted by Co-Operative Bulk Handling Limited under the provisions of the Fair Work Act 2009. The Commission had to consider the scope of the Union's rights under the Act, the obligations of the employer, and the impact of the proposed ballot on the operations of Co-Operative Bulk Handling Limited.

In its decision, the Fair Work Commission found that the Union did indeed have the right to conduct a protected action ballot, as this was a protected industrial action under the Fair Work Act. The Commission acknowledged the importance of such ballots in allowing employees to express their views on potential industrial action. However, the Commission also recognised the potential operational impact on the employer. After weighing these considerations, the Commission determined that the proposed ballot could proceed, subject to certain conditions to mitigate its impact on Co-Operative Bulk Handling Limited's operations. These conditions included the timing of the ballot and measures to ensure that the operations of the company would not be unduly disrupted.

The Fair Work Commission ultimately granted permission for the Union to conduct the protected action ballot, but imposed conditions to balance the rights of the Union with the operational needs of Co-Operative Bulk Handling Limited. These conditions included specific timeframes for the ballot and measures to ensure minimal disruption to the company’s operations.

and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Co-Operative Bulk Handling Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established