Application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2016] FWC 1654

DECISION

Fair Work Act 2009

s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal,

Plumbing and Allied Services Union of Australia

(B2016/372)

COMMISSIONER HUNT

BRISBANE, 16 MARCH 2016

Proposed protected action ballot of employees of Tacoma Plumbing & Drainage.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act

2009 (the Act) by the Communications, Electrical, Electronic, Energy, Information, Postal,

Plumbing and Allied Services Union of Australia (the CEPU). The CEPU seeks a protected

action ballot order in relation to certain employees of Tacoma Plumbing & Drainage (the

Employer).

[2] I directed that my Associate write to the parties requesting that the Employer advise

whether it objected to the Commission considering the application and making the protected

action ballot order in the terms of the draft order.

[3] On Wednesday, 16 March 2016, Mr Wayne Smith of Master Plumbers Queensland,

the representative of the Employer, contacted the Commission to confirm that the Employer

did not intend to contest the application based on the statutory requirements.

[4] In the circumstances I have decided to determine the matter on the papers as I am

satisfied it is not necessary to hold a hearing.

[5] The CEPU has filed an affidavit of Mr Gary O'Halloran in support of the application.

Mr Gary O'Halloran is the State Secretary of the CEPU – Plumbing Division, Queensland &

Northern Territory Divisional Branch. Mr Gary O'Halloran is the Branch Official with

responsibility for representing the industrial interests of members employed by the Employer.

[6] I am satisfied that there has been a notification time in relation to the proposed

agreement and that bargaining has commenced. Further, I am satisfied that the requirements

in ss443(1)(a) and (b) have been met and that, accordingly, an order must be made. An order

[PR578044] based on the draft provided by the CEPU will issue at the same time as this

decision.
[2016] FWC 1654

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made an application to the Fair Work Commission (FWC) under Section 437 of the Fair Work Act 2009, seeking to conduct a protected action ballot among certain employees of Tacoma Plumbing & Drainage. The CEPU, represented by Mr. Gary O'Halloran, the State Secretary of the CEPU – Plumbing Division, Queensland & Northern Territory Divisional Branch, sought the order to facilitate potential industrial action. The FWC Commissioner Hunt determined the matter on the papers, as the employer did not contest the application.

The primary legal issues for the FWC to decide were whether the statutory requirements for a protected action ballot were satisfied, specifically the notification time and the commencement of bargaining. The CEPU provided an affidavit from Mr. O'Halloran to support their application. The FWC had to verify if these requirements under sections 443(1)(a) and (b) of the Act were fulfilled before making an order.

The FWC concluded that the statutory notification time had elapsed and that bargaining had indeed commenced. Commissioner Hunt was satisfied that the CEPU had met the necessary conditions for the protected action ballot. Therefore, an order based on the draft provided by the CEPU would be issued concurrently with the decision. The FWC found it unnecessary to hold a hearing as the application was straightforward and uncontested by the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established