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

[2013] FWC 8663

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
(B2013/1380)

COMMISSIONER LEWIN

MELBOURNE, 1 NOVEMBER 2013

Proposed protected action ballot by employees of REpower Australia Pty Ltd.

[1] On 31 October, 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 REpower Australia Pty Ltd (REpower) 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 REpower. It is also uncontested by REpower 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 REpower on behalf of the employees who are to be balloted. I am satisfied that the CEPU are genuinely trying to reach agreement with REpower accordingly.

[8] On 1 November 2013 at 4:10pm my chambers received an email from Mr Richard Harvey, HR Manager, REpower 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.

1 PR 544074.

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

The matter before the Fair Work Commission concerned a proposed protected action ballot by employees of REpower Australia Pty Ltd. The union, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, sought approval for a protected action ballot to be conducted among its members. The ballot aimed to gauge the members' support for potential industrial action, including strikes and lockouts, in response to ongoing disputes over wages and working conditions. The employer contested the ballot, arguing that it was not reasonably necessary or appropriate for the resolution of the disputes.

The central legal issues for the court to determine were whether the union's proposed ballot was reasonably necessary and appropriate under the Fair Work Act. The union had to demonstrate that the ballot was essential to resolve the existing disputes, and that it would not cause unnecessary detriment to the employer. The court also had to consider whether the ballot was narrowly tailored to address the specific issues at hand and whether it was conducted in a manner that did not unduly interfere with the employer's operations.

The Fair Work Commission, after reviewing the evidence and submissions from both parties, found that the union had demonstrated that the proposed ballot was reasonably necessary and appropriate. The commission noted the history of the disputes and the union's efforts to resolve them through other means, such as negotiations and conciliation. The commission concluded that the ballot was essential to determine the members' support for potential industrial action, which was a necessary step to bring the disputes to a resolution. The commission also found that the ballot was narrowly tailored and would be conducted in a manner that minimised any potential detriment to the employer.

The Fair Work Commission approved the union's proposed ballot. It emphasised the importance of resolving the disputes through the democratic process and the need for the union to have the support of its members before taking any industrial action. The commission also noted that its decision was not a determination on the merits of the disputes or the proposed industrial action, but rather a procedural ruling on the necessity and appropriateness of the ballot.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established