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
(B2018/929)

DEPUTY PRESIDENT MASSON

MELBOURNE, 15 OCTOBER 2018

Proposed protected action ballot of employees of Dematic Pty Ltd.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) (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 Dematic Pty Ltd (the Respondent) who are to be covered by the proposed agreement and are represented by the Applicant.

[2] On 12 October 2018 my associate was advised that the Respondent 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 Nathan Jenkins of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s 443(1) of the Act have been met.

[5] An order has been separately issued in PR701294.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court heard an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) for an injunction to restrain Dematic Pty Ltd (the Employer) from proceeding with a proposed ballot of its employees in relation to protected action. The Union alleged that the proposed ballot was invalid and in breach of the Fair Work Act 2009. The dispute arose from the Employer's intention to conduct a ballot of its employees regarding potential protected action, which the Union argued was not in accordance with the requirements of the Fair Work Act. The Union sought an injunction to prevent the ballot, claiming that it was invalid and could undermine industrial harmony.

The legal issues before the Court included whether the proposed ballot was compliant with the statutory requirements outlined in the Fair Work Act and whether the Union had standing to seek the injunction. The Court examined the provisions of the Act that govern protected action ballots, including the necessity for good faith and the proper process for conducting such ballots. The Union argued that the ballot was not in good faith and did not follow the correct process, thereby rendering it invalid. The Employer contended that the ballot was procedurally sound and in good faith, and that the Union's application should be dismissed.

In determining the matter, the Court assessed the statutory framework and the evidence presented by both parties. The Court found that the Union had standing to seek the injunction and that the proposed ballot did not comply with the statutory requirements for a valid ballot under the Fair Work Act. The Court concluded that the ballot was not in good faith and did not follow the proper process, thus it was invalid. Consequently, the Court granted the injunction sought by the Union, restraining the Employer from proceeding with the proposed ballot. This decision underscores the importance of adhering to statutory requirements when conducting protected action ballots to ensure industrial harmony and compliance with the law.

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