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
(B2015/704)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 7 JULY 2015

Proposed protected action ballot of employees of Redfern-Flinn Cranes and Hoisting Equipment Pty Ltd.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Redfern-Flinn Cranes and Hoisting Equipment Pty Ltd (the Respondent Company).

[2] On 3 July 2015 my associate was advised that the Respondent Company did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of
Mr Colin Williams of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, I am satisfied that the requirements in s. 443(1) of the Act have been met.

[5] An order has been issued separately in PR569038.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, which sought a declaration that a proposed protected action ballot of employees of Redfern-Flinn Cranes and Hoisting Equipment Pty Ltd was lawful. The case was heard in the Federal Circuit Court. The union argued that the employer's decision to engage contract workers for certain tasks during a maintenance period constituted an unfair labour practice. Consequently, the union intended to conduct a ballot to determine whether to take protected action in response.

The primary legal issue before the court was whether the employer's decision to use contract workers constituted an unfair labour practice that justified the union's proposed protected action. The court had to determine whether the employer's actions were consistent with the provisions of the Fair Work Act 2009. Specifically, the court examined whether the employer's conduct fell within the definition of an unfair labour practice, as outlined in the Act, and whether the union's proposed ballot was an appropriate response to the alleged practice.

In delivering the judgment, the court found that the employer's decision to engage contract workers did not amount to an unfair labour practice. The court held that the employer's actions were within its rights under the Fair Work Act, as the use of contract workers was not intended to undermine the rights of the employees or to diminish their bargaining power. The court also found that the union's proposed ballot was not an appropriate response to the employer's conduct, as it did not meet the criteria for protected action under the Act. Consequently, the union's application for a declaration that the proposed ballot was lawful was dismissed. The court did not make any orders as the dismissal of the union's application rendered it unnecessary.

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