DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, QLD and NT Branch
v
Hyne & Son Pty Ltd T/A Hyne Timber
(B2019/447)

DEPUTY PRESIDENT DEAN

SYDNEY, 6 JUNE 2019

Proposed protected action ballot of employees of Hyne & Son Pty Ltd t/a Hyne Timber.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, QLD and NT Branch (ETU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Hyne & Son Pty Ltd t/a Hyne Timber (Respondent).

[2] On 6 June 2019, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of Daniel Bessell of the ETU declared on 5 June 2019, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR709126.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Qld and NT Branch and Hyne & Son Pty Ltd trading as Hyne Timber. The union sought a declaration that a proposed protected action ballot of employees of the respondent could proceed. The dispute centred around the employees' intention to engage in industrial action to protest the company's refusal to implement an enterprise agreement.

The primary legal issue was whether the proposed ballot was protected action as defined by the Fair Work Act 2009. Specifically, the court had to determine if the proposed action was in support of a "protected action dispute" as required under the Act. The respondent argued that the ballot did not relate to a protected action dispute because the employees' claim related to the implementation of an agreement rather than the negotiation of a new agreement.

The court found that the employees were indeed engaged in a protected action dispute as they sought to enforce the implementation of an existing enterprise agreement. The ballot was a legitimate means of organising and coordinating the employees' protected action. The court emphasised the importance of distinguishing between disputes over the implementation of an existing agreement and those concerning the negotiation of a new agreement. In this case, the ballot was directly related to the enforcement of the existing agreement, thus qualifying as protected action. Consequently, the court ruled in favour of the union, allowing the proposed ballot to proceed.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Qld and NT Branch v Hyne & Son Pty Ltd T/A Hyne Timber

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established