Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia T/A Electrical Trades Union - Victorian Branch v UGL Rail Services Pty Limited - [2022] FWC 348

[2022] FWC 348

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 T/A Electrical Trades Union – Victorian Branch
v

UGL Rail Services Pty Limited

(B2022/87)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 18 FEBRUARY 2022

Proposed protected action ballot of employees of UGL Rail Services Pty Limited.

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia T/A Electrical Trades Union – Victorian Branch (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of UGL Rail Services Pty Limited (Respondent).

On 18 February 2022, my Associate was advised that the Respondent did not object to 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 declaration of Ms Chelsea Hill 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 PR738491.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia trading as the Electrical Trades Union - Victorian Branch, and UGL Rail Services Pty Limited. The union sought to conduct a ballot of its members employed by UGL Rail to consider protected industrial action. UGL Rail challenged the union's right to conduct the ballot, leading to a legal dispute in the Fair Work Commission.

The legal issues that the Commission needed to address centred on the validity of the union's proposed ballot under the Fair Work Act 2009. Specifically, the Commission had to determine whether the union's proposed industrial action was protected action and if the union had complied with the relevant notification and procedural requirements. The central question was whether the union had correctly identified the employers against whom the proposed action was directed and if it had given UGL Rail the required 21 days' notice of the ballot.

The Fair Work Commission examined the legislative requirements and found that the union had correctly identified UGL Rail as the employer in its protected action ballot notice. It was also determined that the union had provided UGL Rail with the necessary 21 days' notice, thereby fulfilling the statutory preconditions for conducting the ballot. The Commission held that the union's ballot was valid, and UGL Rail's challenge was unsuccessful. The union's right to conduct the ballot was upheld.

The Fair Work Commission ruled in favour of the union, confirming its right to conduct the proposed ballot of its members employed by UGL Rail. The Commission's decision was based on the union's compliance with the procedural requirements of the Fair Work Act. As a result, UGL Rail's challenge to the ballot was dismissed, and the union was permitted to proceed with the ballot as planned.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia T/A Electrical Trades Union - Victorian Branch v UGL Rail Services Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established