DECISION

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
(B2016/574)

DEPUTY PRESIDENT ASBURY

BRISBANE, 26 MAY 2016

Proposed protected action ballot of employees of the Mulgrave Central Mill Company Limited.

[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 the Mulgrave Central Mill Company Limited (the Employer).

[2] Pursuant to s.442 of the Act, this matter was dealt with at the same time as two further applications under s.473 of the Act that have been made by “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Australian Workers’ Union (the AWU).

[3] 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. This correspondence advised that if no response was received I would consider that the Employer did not wish to be heard in relation to the application. On 26 May 2016 my Associate spoke with the Employer who confirmed receipt of the correspondence and that the Employer did not wish to be heard.

[4] My correspondence above also requested the AMWU, CEPU and AWU give consideration to two drafting issues in respect of their draft orders to avoid confusion between the orders and ensure consistency. Each Union agreed and amended the draft orders sought, which were provided to the Employer.

[5] 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.

[6] The CEPU has filed an affidavit of Mr Michael Haire in support of the application. Mr Haire is an Organiser of the CEPU. Mr Haire has responsibility on behalf of the CEPU for representing the industrial interests of members employed by the Employer.

[7] 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 [PR580858] based on the draft provided by the CEPU will issue at the same time as this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, on behalf of its members employed at the Mulgrave Central Mill Company Limited. The union sought approval for a protected action ballot, which was opposed by the employer. The matter was heard in the Fair Work Commission, Australia's workplace relations tribunal. The central issue before the Commission was whether the proposed industrial action was protected action under the Fair Work Act 2009. Specifically, the Commission had to determine whether the proposed action was in relation to a "workplace dispute" and if it complied with the procedural requirements set out in the Act.

The Fair Work Commission considered the definition of "workplace dispute" under the Fair Work Act, which includes any dispute between employees and their employer about terms of employment or conditions of work. The Commission examined the evidence provided by the union and the employer to ascertain whether the proposed action related to such a dispute. Additionally, the Commission evaluated whether the union had followed the necessary procedural steps, such as providing written notice to the employer and allowing a reasonable time for conciliation. The Commission concluded that the proposed action was indeed related to a workplace dispute and that the union had adhered to the procedural requirements, thus qualifying the action as protected.

Accordingly, the Fair Work Commission approved the union's application for a protected action ballot. The employer's opposition was dismissed, and the union was authorised to proceed with the ballot as per the Act's provisions. The Commission's decision recognised the union's right to organise and engage in protected industrial action, subject to compliance with the legislative framework. The final orders of the Commission mandated that the employer facilitate the ballot process in accordance with the union's notice and the Act's requirements.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established