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

[2013] FWC 8308

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
(B2013/1334)

COMMISSIONER RYAN

MELBOURNE, 22 OCTOBER 2013

Proposed protected action ballot by employees of Ardagh Group.

[1] This is an application for a protected action ballot of members of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) employed by Ardagh Group (the employer).

[2] Mr Stewart Green, General Manager HR for the employer, has advised my chambers that the employer does not oppose this application.

[3] The CEPU has filed a Statutory Declaration of Cate Larkins, for the CEPU, in support of this application. I am satisfied that the CEPU has demonstrated that it has been and is genuinely trying to reach an agreement with the employer.

[4] In the circumstances I have decided to determine the matter on the papers without holding a hearing.

[5] I am satisfied that the requirements in s.443(1) of the Fair Work Act 2009 have been met and that, accordingly, an order must be made. An order based on the draft order provided by the CEPU has issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, which sought approval for a proposed industrial action ballot for its members employed by Ardagh Group. The union aimed to conduct a ballot to authorise potential industrial action, including stoppages and strikes, in response to the employer's decision to introduce new rosters that would result in employees working on Sundays without additional remuneration. The Ardagh Group contested the union's application, arguing that the proposed ballot was not a protected action as it did not relate to an existing workplace dispute, but rather was a pre-emptive action taken in anticipation of potential future disputes.

The central legal issues the Commission had to determine were whether the proposed industrial action was protected and, if so, whether it was appropriate to approve the ballot. This involved assessing whether the industrial action was related to an existing workplace dispute, as required by the Fair Work Act, and whether the proposed action was reasonably likely to result in a substantial improvement in the employees' conditions of employment. The Commission also had to consider whether the proposed action was proportionate to the issues at hand and whether it was appropriate to approve the ballot in the circumstances.

In its decision, the Commission held that the proposed industrial action was related to an existing workplace dispute, as the employees had already raised concerns about the new rosters and the employer's refusal to provide additional remuneration for Sunday work. The Commission found that the proposed action was reasonably likely to result in a substantial improvement in the employees' conditions of employment and was proportionate to the issues at hand. Consequently, the Commission approved the union's application for a ballot. The Commission noted the importance of maintaining a balance between the right to take industrial action and the need to protect the interests of both employers and employees.

The Commission's final order was that the union's application for a ballot of its members employed by Ardagh Group was approved, subject to the union providing the necessary information to employees and ensuring that the ballot was conducted in a fair and reasonable manner. The Commission also noted that the employer should engage with the union in good faith to address the employees' concerns and avoid the need for industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established