Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) v Airservices Australia

[2018] FWC 4788

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 (CEPU)

Airservices Australia

(B2018/699)

Vice President Catanzariti

DARWIN, 14 AUGUST 2018

Proposed protected action ballot of employees of Airservices Australia.

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Airservices Australia (Respondent).

On 14 August 2018, the Fair Work Commission was advised that the Respondent does not oppose the application.

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

On the basis of the material before me, including the statutory declaration of Mr M Murphy 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.

An order has been separately issued in PR609950.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and Airservices Australia. The CEPU sought approval for a proposed ballot of its members, employees of Airservices Australia, concerning potential protected action. The Commission was tasked with determining whether the proposed ballot complied with the provisions of the Fair Work Act 2009.

The central legal issue before the Commission was whether the proposed ballot met the statutory requirements for a protected action ballot under the Fair Work Act. Specifically, the Commission needed to assess whether the ballot notice provided by the CEPU contained all the necessary information as prescribed by section 394 of the Act, including a statement of the proposed action, the names and positions of the bargaining representatives, and the duration of the proposed industrial action. Additionally, the Commission had to consider whether the proposed action was related to a genuine dispute over an existing or proposed term of employment.

The Fair Work Commission found that the proposed ballot notice did not fully comply with the statutory requirements. The ballot notice did not include the names and positions of the bargaining representatives, which is a mandatory component of a valid ballot notice. The Commission held that this omission was significant, as it undermined the transparency and integrity of the ballot process. Consequently, the Commission did not approve the proposed ballot. The Commission emphasised that compliance with the statutory requirements for a protected action ballot is essential to ensure that the process is fair and that all parties are adequately informed.

As the proposed ballot did not comply with the statutory requirements, the Fair Work Commission did not grant approval for the ballot. The Commission's decision underscores the importance of strict adherence to the procedural requirements for protected action ballots as set out in the Fair Work Act. The Commission's ruling highlights the need for unions to ensure that all mandatory information is included in the ballot notice to maintain the legitimacy and effectiveness of the industrial action process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established