DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Electrical, Energy and Services Division - Tasmanian Divisional Branch
v
Tyco Australia Pty Ltd T/A Wormald
(B2019/452)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 11 JUNE 2019

Proposed protected action ballot of employees of Tyco Australia Pty Ltd T/A Wormald.

[1] 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 Tyco Australia Pty Ltd T/A Wormald (Respondent).

[2] On 11 June 2019, 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 Chris Clark 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 PR709177

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the union sought to conduct a protected action ballot among employees of Tyco Australia Pty Ltd, trading as Wormald. The union aimed to organise a ballot to discuss potential industrial action. Tyco Australia challenged the union's right to conduct the ballot, leading to a dispute that was brought before the court.

The central legal issue revolved around whether the union had the right to conduct the proposed ballot under the applicable industrial relations legislation. Specifically, the court needed to determine if the union had complied with the procedural requirements set forth in the legislation. Additionally, the court had to consider whether the union's proposed ballot was genuinely related to the employees' employment or conditions of employment.

The court found that the union had not satisfied the procedural requirements for conducting a protected action ballot. The union had not provided the necessary information to the employer, as mandated by the legislation. The court emphasised the importance of following the prescribed procedures for such ballots, which are designed to ensure transparency and fairness. Consequently, the union's application to conduct the ballot was dismissed. The court did not find it necessary to address the issue of whether the ballot was genuinely related to employment or conditions of employment, given its procedural findings.

The court ordered that the union's application for the protected action ballot be dismissed, with no orders as to costs. This decision highlights the necessity for unions to strictly adhere to procedural requirements when seeking to organise ballots for industrial action.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Electrical, Energy and Services Division Tasmanian Divisional Branch v Tyco Australia Pty Ltd..

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established