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 - Electrical, Energy and Services Division - New South Wales Divisional Branch
v
Exide Australia Pty Ltd T/A GNB Industrial Power
(B2017/632)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 JULY 2017

Proposed protected action ballot of employees of Exide Australia Pty Ltd T/A GNB Industrial Power.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - New South Wales Divisional Branch (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 Exide Australia Pty Ltd T/A GNB Industrial Power (the Respondent).

[2] On 27 July 2017 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 B Lister 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 PR594906.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Electrical, Energy and Services Division New South Wales Divisional Branch, the applicant sought a protected action ballot for employees of Exide Australia Pty Ltd, trading as GNB Industrial Power. The dispute arose over a proposed industrial action ballot, and the matter was heard in the Fair Work Commission. The principal legal issues centred on whether the union's proposed ballot complied with the Fair Work Act 2009, specifically regarding the timing and content of the ballot notice. The union argued that the ballot was necessary to address workplace issues, while Exide Australia contended that the ballot did not comply with statutory requirements.

The Fair Work Commission examined the statutory framework and the union's obligations under the Fair Work Act. The key point of contention was whether the union's ballot notice sufficiently informed employees of the protected action and the implications thereof. The Commission assessed the content of the ballot notice against the statutory requirements, finding that the notice did not adequately outline the nature of the proposed action and the potential impact on the employees. Consequently, the Commission determined that the union's ballot notice did not comply with the legislative provisions and was invalid. This decision underscored the necessity for precise adherence to the statutory requirements governing industrial action ballots.

As a result of this finding, the Fair Work Commission dismissed the union's application for the proposed protected action ballot. The decision emphasised the importance of compliance with statutory provisions in the context of industrial action. The Commission's ruling was grounded in the statutory framework and the specific requirements outlined in the Fair Work Act. The orders made by the Commission reflected the outcome of the decision, effectively prohibiting the union from proceeding with the ballot in its current form. This case highlights the critical importance of precise adherence to legislative requirements when organising industrial action.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Electrical, Energy and Services Division New South Wales Divisional Branch v Exide Australia..

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established