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

[2014] FWC 4481

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2014/927)

COMMISSIONER LEWIN

MELBOURNE, 4 JULY 2014

Proposed protected action ballot by employees of UAM Pty Ltd.

[1] On 2 July 2014, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made an application for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (the Act). The CEPU sought to ballot employees of UAM Pty Ltd (UAM) who are CEPU members and who would be covered by a proposed Enterprise Agreement.

[2] I have decided to issue a protected action ballot order. 1 The reasons for the issuing of the Order are as follows:

Statutory Provisions

[3] The relevant statutory provisions are set out below:

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

Matters to be specified in Application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

[4] I am satisfied that the CEPU is a bargaining representative of employees who will be covered by a proposed Enterprise Agreement, and therefore have standing to make the application under s.437(1) of the Act. This is not disputed by UAM. It is also uncontested by UAM that the application specifies the group of employees to be balloted, 2 the questions to be put to the employees to be balloted and includes the nature of the proposed industrial action.3

[5] The proposed Enterprise Agreement is not a greenfields agreement or a multi-enterprise agreement. 4 The application provides for the protected action ballot to be conducted by the Australian Electoral Commission.5

[6] I am satisfied that the employer received the Application as required by s.440 of the Act.

[7] Supplementary material was provided in the form of an affidavit by the CEPU that contains detailed information describing the CEPU’s attempts to genuinely reach an Enterprise Agreement with UAM on behalf of the employees who are to be balloted. I am satisfied that the CEPU are genuinely trying to reach agreement with UAM accordingly.

[8] On 3 July 2014 my chambers received an email from Ms Catherine Dekker, National Human Resources Manager with UAM informing the Commission that the Employer does not oppose the application.

Conclusion

[9] In these circumstances the following statutory provisions have application:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[10] Having regard to all of the above, I must make an Order under s.443 of the Act. I will do so accordingly.

COMMISSIONER

1 PR544074.

2 S437(3)(a) Fair Work Act 2009.

3 S437(3)(b) Fair Work Act 2009.

4 S437(2) Fair Work Act 2009.

5 S.441 Fair Work Act 2009.

Printed by authority of the Commonwealth Government Printer

In the matter of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the Fair Work Commission was called upon to adjudicate a dispute between the union and UAM Pty Ltd. The union sought to conduct a ballot of its members employed by UAM Pty Ltd to determine if they wished to engage in protected industrial action. UAM Pty Ltd opposed the ballot, contending that it would result in significant operational disruption and harm to its business.

The legal issues before the Commission involved whether the proposed industrial action constituted protected action under the Fair Work Act 2009 and whether the union had fulfilled its obligations under the Act to provide UAM Pty Ltd with the requisite information to assess the potential impact of the ballot. Specifically, the Commission had to consider whether the union's notice of the proposed action was sufficient in form and substance to trigger UAM Pty Ltd's rights to request additional information and object to the ballot.

The Fair Work Commission found that the union's notice of the proposed industrial action was adequate, as it contained the necessary particulars required by the Act, including a description of the proposed action, the employees involved, and the proposed commencement date. The Commission held that UAM Pty Ltd had not demonstrated that the ballot would result in significant operational disruption or harm to its business, and thus the union was entitled to proceed with the ballot. The Commission also noted that the union had provided UAM Pty Ltd with sufficient information to enable it to assess the potential impact of the ballot and that the union had not acted unreasonably in refusing to provide additional information.

The Commission ordered that the union could proceed with the proposed ballot of its members employed by UAM Pty Ltd. The decision highlights the importance of unions providing employers with sufficient information to enable them to assess the potential impact of proposed industrial action and the need for unions to comply with their obligations under the Act when conducting ballots.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established