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
v
BlueScope Steel Limited
(B2018/663)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 31 JULY 2018

Proposed protected action ballot of employees of BlueScope Steel Limited.

[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 (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of BlueScope Steel Limited (Respondent).

[2] On 31 July 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 B Currey 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 PR609583.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Electrical, Energy and Services Division and BlueScope Steel Limited. The union sought to conduct a ballot of employees for the purpose of organising protected action. BlueScope Steel Limited opposed the ballot on the grounds that the union had not met certain requirements set out in the Fair Work Act 2009. The Commission was tasked with determining whether the union had complied with these requirements and, if not, whether an exemption should be granted.

The primary legal issues before the Commission were whether the union had complied with the provisions of section 332 of the Fair Work Act, which governs the conduct of protected action ballots, and whether an exemption should be granted under section 332(3) if there had been non-compliance. The union argued that it had taken all reasonable steps to comply with the Act and that any minor deficiencies should not preclude the ballot from proceeding. BlueScope Steel Limited contended that the union had failed to meet the statutory requirements and that an exemption should not be granted.

The Commission found that the union had not strictly complied with certain provisions of the Fair Work Act, such as the requirement to provide employees with a copy of the proposed protected action notice and the ballot papers. However, the Commission also noted that the union had taken steps to rectify these deficiencies and that the employees had been adequately informed of the ballot. Considering the circumstances, the Commission determined that an exemption from the strict compliance requirements should be granted under section 332(3) of the Act. The Commission held that the union had acted in good faith and that the employees' rights to organise and participate in the ballot were paramount.

The Commission ordered that the union's proposed ballot of BlueScope Steel Limited employees could proceed. It found that the union had sufficiently complied with the spirit and intent of the Act and that any minor technical non-compliances did not undermine the validity of the ballot. The Commission's decision balanced the need for procedural compliance with the broader objectives of the Fair Work Act to facilitate fair and effective industrial relations processes.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Electrical, Energy and Services Division v BlueScope Steel Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established