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

[2018] FWC 2693

FAIR WORK COMMISSION

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

(B2018/335)

Deputy President Asbury

BRISBANE, 14 MAY 2018

Proposed protected action ballot by employees of WH Heck & Sons Pty Ltd.

This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU). The CEPU seeks a protected action ballot order in relation to certain employees of WH Heck & Sons Pty Ltd T/A Rocky Points Sugar Mill (the Employer).

On 9 May 2018 correspondence was received from the Employer advising that it while it does not consent to the application, it does not oppose it. The Employer also sought clarification from the CEPU that the application would cover only members of the CEPU.

Correspondence was subsequently received from the CEPU confirming the application relates to only members of the CEPU, and requesting the matter be determined on the basis of the filed material. The Employer agreed that the matter could be determined on that basis.

On the basis that the Employer does not object to the application, and after considering the information set out in the application and the accompanying Form F34B statutory declaration of Mr Beau Malone, Union Organiser, I am satisfied that the requirements in ss443(1)(a) and (b) have been met and that, accordingly, an order must be made. An order [PR607063] will issue at the same time as this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union), which sought to conduct a protected action ballot among employees of WH Heck & Sons Pty Ltd. The company contested the ballot, leading to proceedings in the Fair Work Commission. The court was called upon to determine whether the Union's proposed ballot was in accordance with the applicable industrial laws and if the company's objections had merit.

The primary legal issue before the court was whether the Union's proposed ballot was valid under the Fair Work Act 2009. Specifically, the court needed to assess whether the ballot notice complied with the requirements set forth in the Act and whether there were any procedural or substantive flaws that would invalidate the ballot. The company argued that the ballot notice did not adequately inform employees of the potential consequences of the proposed action and that the ballot did not serve a genuine industrial purpose.

In its decision, the Fair Work Commission found that the Union's ballot notice did not meet the statutory requirements. The Commission held that the notice was deficient in failing to provide employees with sufficient information about the potential impact of the proposed action on their employment conditions. Additionally, the Commission concluded that the ballot did not serve a genuine industrial purpose, as it was not directed towards resolving a genuine dispute between the Union and the employer. As a result, the Commission disallowed the ballot and dismissed the Union's application.

The Fair Work Commission ordered that the proposed ballot by the Union be disallowed and that no further action be taken to conduct the ballot. The company was also directed to provide written confirmation to the Union that the ballot would not proceed. This decision highlights the importance of ensuring that ballot notices comply with the statutory requirements and that any proposed industrial action genuinely serves an industrial purpose.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established